Professional Responsibility

PROFESSIONAL RESPONSIBILITY – OUTLINE Perez v. Kirk & Carrigan, 822 S.W.2d 261 (Tex.Ct.App. 1991) Statement which defendant thought would be confidential. Attorneys represented that such information would be confidential and then released it to DA after being threatened with subpoena. K&C ISSUES: Is it breach to disclose unprivileged statement after representing it would be confidential? RULES: Representing by lawyer that statement would be kept confidential was sufficient to give rise to a duty on the part of the attorney to NOT violate his ethical duty of not disclosing confidential information without client’s consent. Much information that is ethically protected is NOT privileged, but those things which are privileged, are ethically protected. Lawyer may be required to deliver confidential information, under pain of contempt of court, but same lawyer cannot volunteer such information. An agreement to form an attorney/client relationship may be implied from the conduct of the parties. Moreover, the relationship does NOT depend on the payment of a fee, but ma exist as a result of rendering services gratuitously. Under R 1.6(a), lawyer shall NOT reveal information unless client gives informed consent; disclosure is implied if it is to further representation, or if allowed under 1.6(b) HOLDING: Ct. holds atty/client relationship existed at time that Perez gave his statement to Kirk & Carrigan which gave rise to violation of uberrime fides (highly fiduciary in nature, requiring absolute, perfect candor openness, honesty and absence of concealment or deception.) Ct. held that regardless of whether the privilege attached, K&C breached their fiduciary duty to Perez either by (1) wrongfully disclosing a privileged statement or (2) by wrongfully representing that an unprivileged statement would be kept confidential. Upjohn Co. v. United States, 449 U.S. 383 (1981) BROADEST IRS in a tax investigation sought disclosure of communications between middle & lower level EEs and non-control level EEs. Upjohn resisted claiming that ACP attached. Upjohn’s counsel was investigating whether or not there were bribes/payments made to foreign governments. Questionnaires were sent out to middle level and lower management, where lawyers were trying to find out whether bribes were paid to foreign officials which could violate US law. Ct. of appeals held that control group test determined the privilege. ISSUES: RULES: Does ACP attach between corporate counsel and non-control level EEs? the attorney client privilege between a corporation and its counsel extends to communications between counsel and non-control level EEs. Communications are privileged, but Underlying acts by those who communicated with the attorney are not privileged. A fact is one thing, but a communication concerning a fact is another thing. HOLDING: Ct. holds that Control group test is not definitive, but that privlege extends to communications btw counsel and non-control level EEs. Privilege exists b/c law recognizes importance of full disclosure by client. Lower level EEs are no less important and usually have significant factual information. Supreme Ct. rejected the Corporate Control Group Test (where control group was the big shots, who run the company talk with attorneys). Under Upjohn, Supreme Court held that where attorneys speak with EEs about information within the scope of their employment, then that information/advice is protected by the ACP NOTE: Upjohn case is the rule that applies where FEDERAL law govern. In federal court, Upjohn applies. Also, paralegals, who are operating under the direction of a lawyer, and conducting an interview, that information can be privileged. HOWEVER, Attorney Work Product can be determined by judge’s to fork it over where it is necessary and cannot be obtained elsewhere NOTE: Upjohn construed the privilege under federal law. States are free to define the scope of privileges under the state law. Samaritan Foundation v. Goodfarb, 176 Ariz. 497 (1993) Lawyers representing a child (P) in a medical negligence action against Phoenix Children's Hospital (D) made a discovery request for employee interview summaries prepared by the Hospital (D) paralegal at the request of the Hospital's (D) corporate counsel, who argued that the interview summaries were protected under A/C privilege RULES: where someone other than the EE initiates the communication, a factual communication by a corporate EE to corporate counsel is within the corporation’s privilege, if it concerns the EE’s own conduct within the scope of his or her employment and is made to assist the lawyer in assessing or responding to the legal consequences of that conduct for the corporate client. Ct. held that where someone other than the EE initiates the communication, a factual communication by a corporate EE to corporate counsel is within the corporation’s privilege, if it concerns the EE’s own conduct within the scope of his or her employment and is made to assist the lawyer in assessing or responding to the legal consequence of that conduct for the corporate client. Ct. held that (1) communications btw EEs and corporate counsel are privileged if the EE was the one who sought advice of attorney; OR (2) if attorney sought out the EE, the communication is privileged where the EE’s conduct is in question and such conduct was within scope of employment and such conduct may be imputed to corporation so as to create liability. HOLDING: -1- PROFESSIONAL RESPONSIBILITY – OUTLINE   Lawyers responsibilities What happens to lawyers if they do NOT fulfill responsibilities o Sued o Lose clients o Be disbarred To Whom Or To What Lawyers Owe Responsibilities To?  Client  Employer  Opposing Parties  Court  Obligations may conflict with other obligations/duties to other parties o Client v. ER Duties Owed to Client?  Duty of Competence (prepared and diligent) – R. 1.1, 1.3  Duty of Confidentiality – Model Rules 1.6 (existing clients) and R. 1.8 (potential clients)  Duty to Avoid Conflict of Interest o i.e., a client comes in and admits to crime of hit & run; second client comes in and states that he was victim of same hit & run; should attorney charge contingency fee to 2nd client?  No, b/c CONFLICT OF INTEREST  First client is going to reasonably think that you are stabbing him in back and use info against him  R. 1.7, 18, 1.9, 1.10 and 2.1  Duty of Communication – R. 1.4 of Disciplinary Rules o Lawyer must discuss settlement offer with client o Paul Newman, The Verdict (movie)  Duty to Avoid Excess Fees Duty of Confidentiality (Different sources for Duty of Confidentiality)  Ethical Duty of Confidentiality, which springs from the Rules of Professional Conduct  Model Rules are NOT THE LAW o Typically, the state Supreme Court, because they are the ones who regulate the lawyers conduct, will adopt some version of the model rules  Almost all states have adopted current form of Model Rules with some adjustments to Duty of Confidentiality o Most states impose the ETHICAL duty of the Confidentiality; a violation of which require attorney to be disciplined o If you violate an ETHICAL duty, you get disciplined  Attorney/Client Privilege o Governs privilege in which one side in litigation is seeking information from the other side, where side seeking to withhold information declares that the information is privileged, i.e., relevant to an attorney client communication o Privileged information is NARROWER than what is ethically protected, b/c A/CP protects only communications btw attorney & client  Ethical duty protects 3rd party communications o A/CP concerns/governs whether or NOT information should be handed over  Fiduciary Duty o Governs civil liability o Perez case, attorneys come by while he is on sick bed and leads them to believe that they are going to represent him, but they ratted him out to district attorney’s office o They violated fiduciary duty owed to client which were violated and thus subject to civil liability Most Significant Duties from Attorney to Client  Duty of confidentiality  Duty to avoid conflict of interests  Duty of competence and diligence  Duty to communicate with one’s client  Duty to avoid charging excessive fees Duty of Confidentiality  3 branches to Duty of Confidentiality o Fiduciary duty – if attorney uses confidential information or reveals it, then client can sue Attorney civilly o Ehtical Duty of Confidentiality – springs from Rules of Professional Conduct, which are binding, when state supreme court adopts RPC  R 1.6 – very broad and protects information related to the representation of the client  Any information that relates to potential and actual representation cannot be disclosed by associate to newsreporter o Court seeks to protect client’s expectations of confidentiality  Associated can be suspended from practice of law  Partner speaking to associate is usually impliedly authorized o However, law firm partner specifically states that they do NOT represent the client and client requests NO disclosure o Lawyer SHOULD CLARIFY ANY ambiguity  R 1.8 – even where client does NOT retain Attorney, there remains a duty of confidentiality owed to the client. -2- PROFESSIONAL RESPONSIBILITY – OUTLINE Rule 1.6 Confidentiality Of Information (a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b). (b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: (1) to prevent reasonably certain death or substantial bodily harm; (2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services; (3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services; (4) to secure legal advice about the lawyer's compliance with these Rules; (5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client; or (6) to comply with other law or a court order.  Under Samaran standard, she has to show that she sought counsel’s advice that it could impute liability to o Would be beneficial to plaintiff b/c might NOT protect as much information o Depends on who sought out information  Client seeks counsel, then it is protected, and  If attorney sought out information, then only protected where Individual’s conduct gave rise to liability and whether or NOT they are a witness o Advances plaintiff’s interest more b/c protects less info Upjohn Standard is federal law, and applies to all communications within scope of employment o Broader, covers mid-level or lower-level people o Protects corporation MORE, avoids exposure to liability, criminal sanctions  Protects SHs indirectly  Protects more communications Control Group Test is NARROWEST privilege o Only communication with attorneys and corporate big shots are protected lack of money exchange, that is NOT dispositive. Legitimate reasonable expectation may result in duties of confidentiality to prospective clients. Reasonable expectation is WHAT counts, See Perez case b/c he was duped into confessing to attorneys @ hospital who suggested that they would represent him but later disclosed info to district attorney, and court held that he had a reasonable expectation and ACP attached. If lawyer/client talks to people who do NOT need to know then ACP can be waived   NOTE: NOTE: HYPO: Client with HIV having sex with former client. Under 1.6(b)(1), attorney can argue that attorney is attempting to prevent death or substantial bodily harm, But attorney has NO obligation to do so and notify Ana of HIV status of Ken b/c rules only indicate that the ATTORNEY MAY REVEAL SUCH CONFIDENTIAL INFO, NOT THAT HE MUST REVEAL it. Further, comments (6) and (14) indicates that attorney should attempt to dissuade or change client’s conduct so as to obviate need to disclose confidential information. NOTE: Is death/reasonably bodily harm, reasonably certain to happen? If yes, then attorney can reveal info. If NOT, then attorney cannot reveal info. Whether death/substantial bodily harm is substantially certain (A FACTUAL ISSUE) For R. 1.6(b)(2)-(3) to apply, the attorney/lawyer had to provide the services which caused the ham. NO LAW requires that persons come forward with EXONERATING evidence. NOTE: Rule 1.18 Duties To Prospective Client (a) A person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client. (b) Even when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation, except as Rule 1.9 would permit with respect to information of a former client. (c) A lawyer subject to paragraph (b) shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter, except as provided in paragraph (d). If a lawyer is disqualified from representation under this paragraph, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in such a matter, except as provided in paragraph (d). (d) When the lawyer has received disqualifying information as defined in paragraph (c), representation is permissible if: (1) both the affected client and the prospective client have given informed consent, confirmed in writing, or: (2) the lawyer who received the information took reasonable measures to avoid exposure to more disqualifying information than was reasonably necessary to determine whether to represent the prospective client; and (i) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and (ii) written notice is promptly given to the prospective client. -3- PROFESSIONAL RESPONSIBILITY – OUTLINE IDENTITY ETHICALLY PROTECTED  Client identity is TYPICALLY ethically protected. CANNOT reveal that client is son in law school  If other side in litigation seeks identity, which is subject to ACP b/c being sought by other side; and identity is NOT normally protected under ACP o HOWEVER, i.e.  Client gets in accident @ 2AM. Calls up lawyer and says that he may have killed someone while he is driving;  Later find the body the next morning, and the district attorney/police get together  DA asks lawyer for identity of ALL clients who have retained you in last 24 hours  Does lawyer have to reveal it, or is it protected, notwithstanding rule that says client identity is NOT normally protected by ACP  EXCEPTIONS to identity NOT being protected (p. 53 – Case Book)  Legal advice exception  Last link exception  Confidential communication exception Subpoena can be quashed on the grounds that it is protected by ACP       Last Link Exception to Client Identity, which is normally NOT protected o Where revelation would make client last link in chain of evidence Legal Advice Exception to Client Identity, which is normally NOT protected Information can be revealed to collect fees and to protect yourself even if you are only threatened with criminal sanctions Cannot reveal information to exonerate a person from being wrongly convicted CAN reveal information to collect legal fees o Lawyers write these rules Under MR 1.18 (prospective clients), a lawyer/client relationship ensues where lawyer had discussions with a prospective client, and lawyer shall NOT us such information learned in the consultation o Associate cannot identify the client o Since the goal is advancing client’s trust, it does NOT matter whether client has paid or whether you decide to represent them  Under MR 1.9, lawyers may USE information that is PUBLIC INFORMATION, but cannot reveal information o Not public knowledge that they are representing the son  Under R 1.6(a), lawyer shall NOT reveal information unless client gives informed consent; disclosure is implied if it is to further representation, or if allowed under 1.6(b) o Partner who reveals information to associate to do research is protected b/c it is implied authorized o In general, attorneys may reveal information to associates, partners and paralegals o Lawyers in firm, may in practice, disclose information within firm, unless client requests that information remain with specific lawyer in general “we are NOT representing you;” is she impliedly authorizing him to do work, where he says that they are NOT doing anything b/c they are NOT representing him NOT IMPLIED b/c revelation is NOT necessary to carry out relationship b/c he already told her that they are NOT going to do anything o Under R. 1.18, there are duties to prospective clients where attorney/client information is NOT consummated She has a legitimate, reasonable expectation that this consultation will NOT be in the papers o She said “you will NOT say anything to anyone, will you?”  What did she mean?  Within the firm?  Outside the firm? o Attorney should have asked permission to speak to associate!!!, given the fact that he already said that he would NOT speak to anyone about the case    -4- PROFESSIONAL RESPONSIBILITY – OUTLINE Attorney – Client Privilege (ACP)  Individual situation, where client is a person, NOT corporation  i.e., o lawyer represents client in auto accident  client says to lawyer in confidence, playing on radio, on cell phone and speeding o P through his lawyer asks client, who is defendant, “what did you tell your lawyer about how you were driving on such on such a date?”  Questions calls for information that is protected by ACP o ACP protects communication between client / attorney  Client must communicate about events to lawyer for lawyer to mount a defense o o P’s lawyer might ask the D questions without calling up ACP D can be asked about factual information  Were you on your cell phone?  How fast were you driving?  PΠ’s lawyer cannot expect an answer where communications btw A/C o Where persons is NOT counseled and attorney asks and obtains A/CP information o ACP can be waived o NOTE: what is ethically protected, cannot be waived; even if client blabs about it in public; however, the Privilege can be waived if client starts talking to 3rd persons  If D∆ told other people about him being on cell phone then privilege may be lost; Where Corporation Is The Client (p.31)  Slip and fall accident  Max is first person interviewed where Edith Walton gets hurt in Tracy’s dept. store Attorney Client PRIVILEGE  Protects information when there is a lawyer/client relationship and prevents opposing counsel in litigation from discovering legal advice o Opposing counsel can request facts in deposition, but NOT what was spoken between the lawyer-client  Cannot get at the privileged communication, but underlying facts are permissible  In corporate setting, there are two rules o FEDERAL RULE – Upjohn, if EEs within corporation, even lower level EEs, speak to corporate counsel about something that arose within the scope of their Employment, then privilege attaches  Communication from low EEs and corporate counsel about bribes paid to foreign officials  Control group Rule (ACP) – only communication btw upper level management (top executives), those who retain lawyer or implement lawyer’s advice, are privileged o STATE RULE –Samaritan, if EE seeks out the lawyer to ask for advice, the communication is privileged. But if lawyer is seeking out the EE, where the EE is a witness, but NOT an actor, where his action cannot be imputed to the corporation, the communication is NOT privileged  Samaritan was overruled for criminal cases, but NOT for civil cases  EXCEPTIONS o Lawyer can defend himself from disciplinary actions by using privileged information and reveal only as necessary to defend himself o Lawyer can reveal identity and amount of work provided to collect fee  Cannot reveal subject matter b/c unnecessary to collect fees WAIVER only applies to ACP, but NOT ethical duty of confidentiality o Ethical duty CANNOT be waived o Opposing side who seeks information that was revealed by client to friends, etc. would constitute a waiver of privilege Client IDENTITY is ethically protected, which means that the lawyer cannot ethically reveal such information; o HOWEVER, with respect to ACP, ordinarily, client identity is NOT privileged;  HOWEVER, if revealing client identity will reveal reason for client coming to the attorney in the first place or reveal client to be the last link in a chain of evidence, the identity would be privileged Seeking advice as to Commission of Crime is NOT privileged. If client were to retain attorney and requests criminal advice, say to kill his wife, then communication is NOT privileged. Opposing party can argue communication was for criminal advice and thus NOT privileged o If there will be a death or substantial bodily harm will result, lawyer may reveal information o If a fraud will be committed that will result in substantial injury, then lawyer may reveal information  R 1.6(b)    -5- PROFESSIONAL RESPONSIBILITY – OUTLINE Taylor v. Illinois, 484 US 400 (1988) Taylor received a criminal conviction after the court refused to allow him to call a critical witness because his defense lawyer had failed to provide the prosecutor or the state of IL with a defense witness list. Rights to compulsory process under 6 th amendment were violated and NOW, b/c court’s ruling, he cannot have witness testify. Lawyers made a calculated trial strategy to gain a tactical advantage and NOT put witness on witness list. RULES: The client must accept the consequences of the lawyer’s decision to forgo cross-examination, to NOT put certain witnesses on the stand, or to NOT disclose the identity of certain witnesses in advance of trial. This case stands for the proposition that lawyers are their clients' agents HOLDING: Ct. holds that the client must suffer the consequences of the lawyer’s decision. In cases where the client’s attorney is stupid, he will suffer the consequences, unless its so egregious, its ineffective assistance.  Client is being punished for failure of lawyer to put key witness’ name on witness list. In extreme cases, clients can bring suit requesting new trial based on ineffective assistance. Lawyer screws up but you still get to spend the next 20 years in jail  Policy: Prevent lawyer/client from possibly colluding to get client a second trial Client should NOT be punished by attorney’s misconduct. What if decision had come out the other way? If lawyers are disinclined from gaming the system b/c of the risk of discipline, i.e. being disbarred? Why would court punish client if system punishes lawyer’s trickery/deception, etc. HOW could judge inquire into lawyer/client relationship, and they could blame each other as a tactical advantage DISSENT: Cotto v. United States, 993 F. 2d 274 (1st Cir. 1993) Lawyer fails to vigorously prosecute case resulted in dismissal, and client had NO recourse;. Family members of small child who caught his hand in conveyor belt brought action under Federal Tort Claims Act (FTCA). RULES: In adversary system the acts and omissions of counsel are customarily visited upon the client in a civil case. A judge has an abiding obligation to take or initiate appropriate disciplinary measures against a lawyer for unprofessional conduct of which the judge becomes aware. Judicial Canon 3(D)(2) HOLDING: Affirmed and remanded with instructions. In terms of his case, the client is out of luck, but can sue the attorney for malpractice in civil court and seek disciplinary sanctions by filing a complaint.  Money can take the place of money, and client can be fully vindicated even despite attorney screws up  For policy reasons, court’s favor having client’s suffering the consequences of attorney’s failures NOTE: in civil case, malpractice suit would vindicate the client’s claims; HOWEVER, in criminal case, client will be bound and suffer jail time. Client is bound by pleadings or opening statements. Attorneys can make statements outside of court and if authorized to do so may be viewed as admission but NOT a binding one, but client can dispute the admission. Concession made in opening statement is NOT disputable. It is equivalent to stipulation, binding admission -6- PROFESSIONAL RESPONSIBILITY – OUTLINE Nichols v. Keller, 15 Cal. App. 4th 1672 (1993) DUTY TO INFORM & ADVISE Appeal from SJ dismissing malpractice. Nichols suffered job related injury. He retained Keller for worker’s comp. claim. Client says that he wants lawyer to handle the “worker’s compensation case.” Attorney works on worker’s compensation case and NOT the tort case. Attorney never informs client of possibility of pursuing tort case. Nichols did NOT learn of his potential recourse against 3rd parties in a civil suit until after SOL. Keller claims it was NOT part of their representation. RULES: an attorney may be obligated to alert a client to legal remedies outside the direct scope of that attorney’s representation to the client. R. 1.2(c), a lawyer may limit the representation, where the limitation is reasonable under the circumstances and client gives informed consent. Lawyer should create a specific retainer for claim and have client’s informed consent for limitation. One of the attorney’s basics functions is to advise; lawyer should inform the client of the limitations of representation, foreseeable negative consequences, and of the possibility for a need for outside counsel n that area of expertise. The attorney need not advise and caution of every possible alternative, but only those that may result in adverse consequences if NOT considered. If a consequences is foreseeable, even outside the area of the attorney’s representation the attorney is under a duty to disclose the risk, and advise that client to seek outside counsel b/c NOT his expertise, THEN onus is on client to protect his rights, but until then, it is attorney’s responsibility to inform client of his rights. HOLDING: Ct. holds that in the event the lawyer fails to so advise the lay persons, it is also reasonably foreseeable the layperson will fail to ask relevant questions regarding the existence of other remedies and be deprived of relief through a combination of ignorance and lack or failure of understanding. Lawyer should clarify his role and other alternatives. Ct. held that lawyers have right to limit representation under R. 1.2. HOWEVER, Lawyer must explain to an unsophisticated client what the client’s options were, so lawyer who fails to do so is held liable, for Client may fail to realize that they have a worker’s comp claim as well as a tort claim. Lawyer must make clear any alternative suit that is NOT being performed. Ct. held that attorney should inform client of his rights, even if outside the area of representation, of all foreseeable negative consequences. He should refer to outside counsel to protect client’s rights, and it becomes client’s problem to protect his own rights, once attorney’s advises him of those rights. WHEN IN DOUBT, Attorney should DISCLOSE. Failure to communicate (disclosing too little) will get him in trouble, but disclosing too much cannot. Jones v. Barnes, 463 US 745 (1983) LAWYER’S AUTONOMY Client wants an appeal and he has a public defender as counsel. Lawyer decides NOT to burden the court with all defenses and will only put in one or two. Client says that all defenses are bona fide, and wants all defenses include, b/c client will serve time for crime. Lawyer submits only one or two good defenses, and client submits additional defenses at last minute. Appellant claims ineffective assistance. 6th amend. constitutional right to counsel ISSUE: whether defense counsel assigned to prosecute an appeal from a criminal conviction has a constitutional duty to raise every nonfrivolous issue requested by the defendant? An attorney representing a defendant on appeal is not under a duty to raise every nonfrivolous issue requested by the defendant. Attorney determines what means will best result in obtaining the client’s objectives. Client must be given information so as to decide which objectives to choose. Clients Autonomy - Rule 1.2(a), client gets to decide the objectives of the case. With respect to means, the attorney must consult with client but NOT be bound by the client’s decision. Appeal is means, NOT objective. HOLDING: Ct. held that client’s 6ht amendments rights were NOT violated when lawyer failed to present all non-frivolous arguments. Ct. finds that client must stick with attorney’s decision. He is stuck with public defender. This case decided under the 6th Amendment. This case was a constitutional ruling and as a matter of federal constitutional law, there is NO right to press all issues on appeal. Court found that lawyers are experts and can pick and choose; failure to submit all does NOT give rise to 6ht amendment violation NOTE: is this a different brand of justice for those who can afford their own attorney? RULES: Olfe v. Gordon, 93 Wis. 2d 173 (1980) CLEINT’S AUTONOMY Olfe retained Gorden to handle sale fo her house. She wanted to take back 1st mortgage NOT second Gorden told her she as taking back 1 st but it was actually 2nd mortgage. The purchaser defaulted and Olfe was screwed and lost $250K. A trial court held that expert testimony was required for Olfe (P) to recover against her former attorney, Gordon (D), even though he had intentionally disregarded her instructions in the underlying transaction. She got 2nd mortgage despite specifically asking for one mortgage and attorney who gave her documents knew she was not getting what she wanted. RULES: Cannot lie to client. When an attorney disregards a client's instructions to the client's detriment, expert testimony is not required for the client to recover. The ABA professional code does NOT have a rule to follow clients instructions, but zealous advocacy and honesty, have been used to imply a more agent/principal based law for this particular code of ethics NOTE: -7- PROFESSIONAL RESPONSIBILITY – OUTLINE HYPO  Plaintiff argues that defendant is playing a lottery game and he is faking  Defendant lawyer’s admission in opening statement was binding on the defendant o Does NOT matter whether there is any evidence or how much evidence is presented on that issue b/c defendant made a binding concession/admission at opening statement  Defendant moves for directed verdict b/c no evidence was presented that client was negligent, but fails b/c of admission @ opening statement HYPO  Defendant lawyer made statement about his client driving too fast outside of court? o Binding admission? Admissible but NOT binding? NOT admissible at all?  Possibly admissible but NOT binding depending upon whether it is authorized or NOT  In general the lawyer is the client’s mouthpiece and is impliedly authorized to speak on behalf of the client  if NOT authorized, then Inadmissible b/c it is HEARSAY  If authorized, binding as an ADMISSION as made by an agent but NOT admissible HYPO:  Client gives lawyer info about real estate purchase o Lawyer buys land and builds supermarket  Is lawyer free to buy land once client has told him about it?  NO, client can get order to convey land to client for breach of fiduciary duty o Lawyer can be sued for damages o Client can report lawyer to authorities for using confidential information for lawyer’s advantage and client’s disadvantage HYPO:  If lawyer buys property next to client, then may be allowed if there is MORE info indicating what are client’s intentions and whether attorney is interfereing with client’s opportunities  Lawyer cannot interfere / usurp the client’s opportunities and court will look at client’s intentions (to develop only supermarket or develop entire area) Excelsior Corp v. Lerner, 553 NYS2d 763 (1990). Here, the lawyers who are representing co-op, and referred co-op to a firm and failed to tell them that he would get a cut. Client had a right to know that he was getting something. RULES: Client knowledge of joint representation agreement between lawyers is the sine qua non of its ethical validity. Here, where claims of self-dealing and divided loyalty are presented, a fiduciary may be required to disgorge any ill-gotten gain even where the plaintiff has sustained no direct economic loss. Court found that lawyer’s failure to communicate his fee arrangement was Breach of fiduciary duty. Ct. held that client is entitled to know who is representing them. Attorney’s judgment is open to question b/c he is going to be compensated from this agreement and may be looking to line his own pockets and NOT co-op’s interests. Court does NOT require Co-op to show that the real estate company was bad in order to prevail. Here, the conflict of interest is SO great that the court does NOT require more b/c there is too much risk of lawyer taking advantage. NOTE: A lawyer who goes into secret competition with his own client or assisting another of the client’s fiduciaries in doing so may be liable to client in a civil action. Lawyers owe fiduciary duties. Cannot usurp opportunities tat rightfully belong to the client. HOLDING: -8- PROFESSIONAL RESPONSIBILITY – OUTLINE     Ethics rules (state law rules) determine who gets to decided o Under R. 12, client gets to decide objectives (whether to plead guilty, accept settlement); lawyer communicates and client’s gets ultimate say o HOWEVER, as to means, lawyers make ultimate decision, after consulting with the client If client has diminished capacity, lawyer cannot overrule client’s decision o If lawyer suspects that client is incapable, then court should ask court to appoint guardian ad litem, despite having to try to maintain normal lawyer/client relationship Client has right to fire lawyer anytime he or she wants o Lawyer can withdraw or terminate under circumstances under R. 1.16  If client is NOT to be hurt, you may withdraw  If client seeks to puruse a action you find repugnant If client is perpetrating a fraud, you will have to withdraw HYPO  Pro-life protester is going back and forth in front of abortion clinic and waiving sign carelessly  A woman is about to enter into the abortion clinic and accidentally hits the woman and she goes down a flight of stairs and has a miscarriage  He is NOW charged with manslaughter for being careless about waiving the sign around  Public defender says that since a fetus is a non-human being and therefore cannot be charged for killing a fetus as a human being o Client is pro-life so fetus is a human being to him o Is this a means or an objective?  R 1.2(a), lawyer gets to decide means after consulting, objectives client gets to decide. Attorney is required to consult with client about means but makes ultimate decision as to means. However, attorney must follow client’s instructions as to his objectives. o Client may have a larger political objective  MLK jr. in civil rights movement did NOT want to get out of jail, he wanted to over crowd jails and cause change  Man might want fetus to be recognized as life and go to jail for it HYPO: nd  Lawyer requests 2 extension of time to file amended complaint  HOWEVER, requires court order NOT just stipulation  3 days to submit complaint  Lawyer seeking extension with sick father would be sued for malpractice o If lawyer signs stipulation is this fraud for signing a piece of paper which he knew to be worthless  Should lawyer warn him of possible need of court order? Possible malpractice? o Negligence is enough for fraud in many jurisdiction  If negligence is enough, then lawyer signing stipulation is perpetuating a fraud   If it’s a choice between you are your client going to jail, make sure its NOT you o NOT worth it to lose your license If the client objects to the extension, can the lawyer still do the extension herself or NOT? o If it’s a means? And an end? (If means results in case ending, then it may be an objective) R. 1.16, Decline/Withdraw From Representation.  Where client fails to grant permission to inform adversary of extension rules, under R. 1.16(b)(4), lawyer can withdraw if client insists on taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement   Lawyer is NOT required to take all criminal cases, or if client cannot pay fee, the lawyer does NOT have to take the case, unless the court appoints you to do it If a client thinks that your looks don’t please him or her, then is client free to tell you he is NOT going to hire you o In some jurisdictions, client cannot discriminate based on race/religion, but otherwise, they can choose NOT to hire a specific lawyer R. 1.14, Client With Diminished Capacity.  Client does NOT want to proceed with appeals. Lawyer does NOT follow client’s wishes and proceeds with appeals. Can attorney tell court about client’s lack of mental capacity o Under 1.14, if the court determines that the client lacks capacity, then court can appoint a GUARDIAN AD LITEM, who will act as a substitute decision maker o If judge does NOT appoint Guardian Ad Litem, then attorney is NOT free to override the client’s decision; ultimate objective is whether to live or die  What is in the client’s best interest? HYPO:  Woman’s lawyer thinks offer is bad, first offer in a divorce settlement  Client says that it wants to take first offer for divorce settlement  Lawyer should push their client, and indicate what experience indicates, esp. as to first offer; o HAVE HER SIGN STATEMENT THAT settlement was taken against the advice of counsel to protect yourself from her suit -9- PROFESSIONAL RESPONSIBILITY – OUTLINE Niesig v. Team I, 76 NY2d 363 (1990) COMMUNICATING WITH CLIENT IN CIVIL MATTERS Niesig was injured in construction site accident. He sued various entities. Attorney sought to conduct ex parte interviews with Corporation EE/Witnesses, but court held that Current EEs parties and therefore could NOT be communicated directly. ISSUE: While NY Prof Resp Rules prohibits ex parte communications with opposing parties; corporations are NOT persons, so which individuals are considered parties for purposes of NY Prof Resp Rules?, An attorney may conduct ex parte interviews with a corporate adversary’s EEs if the EEs do NOT have power to bind the corporation. (NY Rule) Under 4.2, you cannot talk to parties whose actions can be imputed to corporations. Under R. 4.2, you can talk with former EEs, b/c rule does NOT cover former constituents. Disgruntled EEs are the best. NY RULE  cannot talk to EEs of corporation that have power to bind corporation. HOLDING: Ct. held that attorney may conduct ex parte interviews with corporate adversary’s EEs if EEs do NOT have power to bind the corporation. Ct. will interpret Prof Resp Rule as it sees fit b/c it is NOT a statute. Ct. finds that all persons have power to bind corporation are to be considered parties and cannot be communicated exparte. This rule is based on agency principles, and Ct. rejects blanket rule that covers all EEs and also rejects control group test b/c it overlooks the fact that someone other than senior management can bind speak for corporation. NOTE: State law governs corporate counsel client’s communication. If former EE, then free to talk so long as NOT privileged info. If current actor and action can be imputed, need corporate counsel permission. If corporate director,big dog, need corporate counsel permission. Under R. 4.2, if you know someone has attorney, you cannot directly speak to them, you could use your trickiness to get damaging admissions to them. You need other parties’s counsel’s permission to talk to them RULES: R. 4.2, Communication with Person represented by Counsel In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has consented of the other lawyer or is authorized to do so by law or a court order. NOTE: Defendant’s counsel is NOT free to contact the plaintiff to speak about case. Defense counsel mustget consent from Plaintiff’ counsel and take a deposition. The rule prohibits ex parte communication b/cit assumes the attorney has superior knowledge and that he may turn plaintiff against his own attorney. Rule does not allow defense counsel to interfere with the plaintiff lawyer relationship. NEW lawyer can talk to client without consent from current counsel and does NOT have to speak directly to current counsel esp. where client is dissatisfied; otherwise, client cannot switch counsel. HOWEVER, pursuant to rule 7.3(a), an Attorney cannot do in person solicitation, but can send letter labeled as advertisement or ad in newspaper is also allowed. Regardless of whether the attorney or the client initiates the conversation, R. 4.2 prohibits that an attorney speak to someone represented by counsel. Attorney must walk away and tell client to NOT speak to him without attorney. United States v. Hammad, 858 F.2d 834 (2d Cir. 1988) COMMUNICATING WITH CLIENT IN CRIMINAL CASE Taiseer and Eid Hammad was defrauding Medicaid. Wallace Goldstein provided false invoices to Hammad. Wallace cooperated with the prosecutors and wore a tap and had a phony subpoena papers. The meeting between Wallace and Taiseer was videotaped. ISSUES: To what extent does the rule 4.2 restrict the use of informants by government prosecutors prior to indictment, but after a suspect has retained counsel in connection with the subject matter of a criminal investigation? Prosecutors may use informants to meet with subjects of criminal investigations, even if they are known to have counsel, in pre-indictment non-custodial situations. Under DR 7-104(A)(1) a prosecutor is authorized by law to employ legitimate investigative techniques In conducting criminal investigations. The use of informants will generally fall within the ambit of such authorization, so any prohibition RULES: HOLDING: Ct. held that in pre-indictment, non-custodial situations, prosecutors may use informants to meet with subjects of criminal investigations even if they are know to have counsel. Ct. however held that the use of fraudulent subpoenas was a misue of court process and did NOT fallw tihin the authorized by law exception to DR 7-104 (A)(1) - 10 - PROFESSIONAL RESPONSIBILITY – OUTLINE In corporation case, the Niesig case and R. 4.7, determines who is considered a client when talking to them o If former EE, you are free to talk to them as long as you do NOT elicit privilged information (even ex-corporate big dogs can be spoken to) o If persons is actor whose actions can be imputed as part of corporation, then you need corporation counsel’s permission o If they are responsible for directing counsel, implementing corporate policy, then you need corporation counsel’s permission  In criminal situations, R. 4.2, in representing a client, a lawyer cannot speak to a client who he knows to be represented by another lawyer; so applies to prosecutors  In Hammad case, guy was wearing a wire and trying to get damaging admissions from Hammad for their attempt to commit Medicaid fraud o Goldstein was NOT lawyer, but 4.2 applies b/c he was alter ego/agent of prosecutor. o Essentially, prosecutor was trying to do through his puppet, indirectly, Mr. Goldstein to get certain investigations/admissions  Prosecutors may have inherent authority to investigate defendants through use of informants o Prosecutor may use an informant to gain information COURT ORDER EXCEPTION to R. 4.2  Court order require to wiretap someone; Prosecutor can go to judge to get wiretap permission  With court permission, prosecutor does NOT have to worry about running afoul of R. 4.2  Prosecutor issued a fake subpoena o Judge did NOT authorize him to issue fake subpoena o If he had NOT used fake subpoena, then he would NOT have violated 4.2  Undercover informants with wires would be okay with court order so long as he did NOT use phony subpoena HYPO  US attorney can participate in sting by getting accomplice to wear a wire with a valid court order  R. 4.2 applies to criminal/civil situations o Without court order, attorney may be sanctioned; severity unknown  Under Brewer v. Williams, 430 US 387 (1977), the 6th amendment applies to criminal cases and prohibits the state from questioning a defendants outside the presence of his counel after “judicial proceedings have been initiated.” o 6th amendment does NOT prohibit questioning a charged person about a factually related but distinct and uncharged crime. Texas v. Cobb, 532 US 162 (2001) (P. 102)   Defendant sends Plaintiff’s counsel privileged information and discovers that it does so R. 4.4(b) requires notice to opposing counsel that you received document that looks to be privileged even if received erroneously/accidentally o Plaintiff’s attorney is NOT obligated to do what defendant’s request to require that plaintiff’s counsel return document and not use it? o Could defendant go to judge and request that it be barred from being used o Plaintiff can argue that it was their mistake, ACP was waived and by mistake and that they reasonably looked at it; other side is accountable  Some jurisdictions say that privileged is NEVER waived  Some jurisdictions say that privileged is ALWAYS waived  MOST jurisdictions take a middle ground and such privileged info is sometimes waived  Issue as to whether privilege was waived given the circumstances HYPO p. 111  Former paralegal calls and states that she has important docs NOT given in discovery o If info is stolen/privileged, then attorney would be sanctioned for getting them  R. 4.2 states that it is NOT a violation to talk to former EE; HOWEVER, cannot elicit attorney client privileged stuff even from a former EE o How do we know that these docs are stolen or are privileged  Important to get court involved o Subpoena duces tecum her and ask that she produce all docs she has in her possession o Defendant may seek to quash duces tecum o Judge can perform an in camera review, and review docs to see if docs are privileged and if NOT to sanction defendant for failing to comply with discovery rules HYPO  Medmal case  Π Plaintiff contacts an Expert and tells expert her theory of her case and has long discussion with the expert  Ultimately, Plaintiff decides NOT to retain expert b/c cannot speak English well  Defendant contacts expert and finds out that expert had spoken with plaintiff o Can defendant debrief expert about what it was that expert had talked to plaintiff about  Some courts will automatically disqualify defendant as soon as you found it he had spoken to plaintiff previouslly; other courts will disqualify when defendant can show that he was unaware of preivous communication with plaintiff  R. 4.2, cannot talk to people who you know to be represented by counsel o Rule applies in criminal context o Prosecutor/agent can conduct an undercover sting operation, if he has a court order to do so, and that falls under “Except as by laws or court order” exception under R. 4.2 If defense counsel wants to talk to complaining witness under R. 4.2, can he do so? o R. 4.2 does NOT apply b/c the witness is NOT represented by the prosecutor o Prosecutor represents the STATE, not the victim, and as long as the complainant does NOT have an attorney (if he is bringing a civil case) Improper acquisition of confidential information: o If attorney seeks to obtain attorney client privileged information o Or debriefs an expert who has interviewed the other side  Consequences:  Lawyer being disciplined  Being removed from the case A misdirect fact or email, then attorney must contact the other side, but you do NOT have to follow the other attorney’s direction, attorney can argue that the privileged information was waived o Courts differs as to whether information will be considered waive and consider what type of info and how important    HYPO:  Lawyer wants to interview Max Burkow the head of maintenance and would lawyer need to get consent of corporation’s lawyer HYPO  McDonald’s required to sell Coca Cola, NOT pepsi, but someone knows that one McDonald’s is selling Pepsi  R 8.4(a), lawyers cannot violate or attempt to violate rules of professional conduct by knowingly do so or induce others to do so o If lawyer cannot ask for a Pepsi, then he cannot ask Joe Smoe to ask for Pepsi Is there anything wrong with lawyer himself asking the EE for a Pepsi? Lawyer is still communicating with someone you know is represented by counsel, Cases on p. 100, most cases say that this is okay o Why is this okay? o In order to challenge act, you must have some one go in and test for bad act, (red lining from banks, selling pepsi) which is NOT inconsistent with R. 4.2    - 11 - PROFESSIONAL RESPONSIBILITY – OUTLINE Brobeck, Phleger & Harrison v. Telex Corp., 602 F.2d 866 (9th Cir. 1979) cert. denied, 444 US 981 (1979) MARKETPLACE - LAWYER’S FEES Attorney got $1M for filing writ of certiorari even though it was denied. 9th Circuit found fee was fine and entitled to be paid as such. Telex was Multimillion dollar corporation and going into bankruptcy for $18M. RULES: Calculation of Attorney’s Fees were paid on a CONTIGENCY fee basis. Attorney assumes some risk in the case for the loss. A contingency fee of $1M for handling writ of certiorari to Supreme Court is NOT unconscionable A contract will be unconscionable only if it is one that “no man in his senses and not under a delusion would make on the one hand and no honest man would accept on the other.” HOLDING: Ct. held that the amount in controversy was large, so huge fee may be justified for multi-million corporation. Ct. found that Telex was sophisticated client, and that Brobeck was probably hired by the corporation’s in house counsel b/c Brobeck was the best anti-trust attorney in the country (VERY, VERY experienced counsel). This was a complicated anti-trust case and there was an issue of potential financial loss. Matter of Laurence S. Fordham, 423 Mass 481, 668 NE 2d 816 (1996) UNETHICAL FEES Father of accused drunk driver hired Fordham. Fordham was experienced litigator in prestigious Boston firm. Fordham charged $45K. RULES: In determining whether fees are excessive a court may considered” (1) the novelty/difficulty of the issues presented; (2) the time and skill required to perform the legal service properly, AND (3) the fee customarily charged in the locality for comparable services Ct. found that he spent a lot of time educating himself despite good faith and diligence, and that the rules have an objective standard by which to gauge the appropriateness of the fees Discipline does NOT require bad faith, dishonesty or overreaching, just a finding that fees were unreasonable. Ct. held that lower court’s finding was incorrect and judgment reversed and attorney ordered to take a public reprimand. HOLDING: NOTE: Client was charged with DUI, he was an individual. Court may be more inclined to protect individual client. Also, here was a poorer client, an Unsophisticated Client. Further, compared to Brobeck, the attorney here in Fordham is a NOVICE and was reading up on law for a simple DUI case, which is less complicated than anti-trust, and almost any lawyer could handle this case. Fordham was reading corpus juris on how to handle the case and did a decent job, but his client stands to serve jail time and should NOT be taken advantage of. Most people found that $45K was 5X more than the market rate as indicated by experts. Calculation of Attorney’s Fees were hourly. Matter of Cooperman, 83 NY2d 465 (1994) NY RULE OF UNETHICAL FEES Lawyer is charging a minimum fee of $10K. Special retainer regardless of work performed. Cooperman charged 3 separate clients advance minimum fees of $15K, $5K, and $10K for specific services. Cooperman’s agreements were in writing and stated that fees were NONREFUNDABLE for any reason, even if client left him. Cooperman refused refunds after client’s discharged him, despite NOT performing work. Grievance committee suspended him for 2 years b/c the purpose of the agreements were so that client’s could NOT discharge him. RULES: Court affirms Appellate division order suspending attorney for 2 years and prohibiting use of SPECIAL non-refundable retainers paid in advance irrespective of whether any professional services are actually rendered. Special nonrefundable retainer fee agreements are per se violative of public policy Attorney who is discharged before completed services, has right to recover compensation (in quantum merit) for any services he has actually rendered. HOLDING: NY court finds this special retainer to be non-problematic. Ct. holds that professional responsibility reflects an unqualified right to terminate the attorney client relationship. Client should be free to sever the fiduciary relationship whenever he desires, but nonrefundable retainers prevent him from doing so. Reasonable fees to prevent client from discharging an attorney are not acceptable. Ct. found that nonrefundable specific retainers violate public policy of unjust enrichment where lawyer may get money for doing nothing. Public policy involves the client’s ability to fire a lawyer that she has lost confidence in; if there is a special retainer than you CANNOT fire the lawyer b/c you would lose $10K and stick with attorney with which client has totally lost confidence in NOTE: NY is the MIN b/c no other state has adopted this prohibition on nonrefundable specific retainers. In all jurisdictions, minimum fee arrangements and general retainers are acceptable. Some courts may order disgorgement for unethical fees as well as additional disciplinary action. Some of the cases that follow Cooperman suggest that courts outside of NY allow for special retainers where client is sophisticated and understands possible loss and appreciates ability to save some money by limiting fee (in some cases $10K retainer may be a bargain and in other it may be too much money). Competing public policy issues at stake. Cooperman favors right of client to fire lawyer with whom he has lost confidence. Ryan and Sader case allow for greater freedom of contract for sophisticated clients in these types of retainer agreements - 12 - PROFESSIONAL RESPONSIBILITY – OUTLINE R. 1.5(d)(1) – the lawyer shall NOT charge contingency fees for domestic relations/divorce/marital affairs o No attorney would ever encourage reconciliation b/c attorneys would never obtain fees o Bad public policy to encourage LACK OF reconciliation  Under R. 1.5, contingency fees will be unenforceable if NOT in writing  Hourly fees should also be in writing  R. 1.5 lists many different factors for attorney’s fees o Novelty, difficult or questions involved, skill required o Fee charged in locality for similar services o Amount involved and results obtained o Contingent/hourly fee? o Time limitations imposed by client or by the circumstances HYPO  World’s best criminal lawyer requires $500M, or 2% of potential client’s net worth  Other counsel would charge $2M  Scheck is the best criminal lawyer for homicide in the country  Porgby hires him anyway, gets acquitted and then sues it as unethical, unconscionable fee  Attorney can argue that the fee was reasonable considering Porgby’s $2B net worth and results obtained o Should court favor freedom of contract o How much does an individual value representation o Court should protect unsophisticated  R. 1.5 limits freedom of contract in attorney/client context o Court will NOT enforce a $500M attorney’s fee b/c it comes to $166K/hour o Even with a sophisticated client, there may be some limit OLD EPISODE OF L.A. LAW  Abby was an associate in big law firm  She is NOW on her own and She is handling a personal injury case on contingency fee basis  Abby had taken on a contingency fee basis o She pushed for a settlement b/c she wanted to get paid now b/c she had bills to pay o Low ball offer is NOT good for the client  Why do the ethic rules permit contingency fee agreements  Contingency fee may create a conflict of interest o Those with no money can obtain representation  If someone is middle class might prefer contingency fee arrangement b/c if they loss then they wouldn’t lose any money o People who are risk averse might prefer that the lawyer take on some of the risk  What happens if a client has a really good case?  If client is Willing to pay $300/hour, does lawyer under ethics rules have to take the case on an hourly basis?  Is lawyer under MPC free to tell the client that he only takes cases on contingency fee basis  MPC allows attorney to charge exclusively contingency fee o Is MPC protecting interests of client? o Is attorneys interests being protected? YES, Rules are written by ABA  In some communities, you may NOT find attorneys who work on an hourly/contingency fee basis o Under contingency fee arrangement, lawyer’s and client’s interests become aligned o Sometimes the interests of the lawyer and client are NOT aligned   Lawyer wants to get quick settlement (one phone call) and get $17K rather than $20K for years of work In other western civilizations, this kind of contract is illegal; other countries subsidize litigation for people who are poor and give legal services to those who cannot otherwise afford it o USA does NOT do so In criminal context, lawyers were NOT concerned about NOT being able to charge contingency fees b/c if they lose then clients go to jail and they will NOT get paid o All practical, criminal attorneys charge hourly rates o NO ONE will take money after the fact and insist on retainer upfront  NON REFUNDABLE Attorney’s FEES HYPO:  Sarah Bennet is a top notch Antitrust specialist in private practice  Can Sarah charge $10K just to be available (she can or cannot do a lot of work)  “Special non-refundable retainer fee agreements with her clients paid in advance and irrespective of whether any professional services are actually rendered”  She can charge hourly fee;  Client is giving an assurance that they will have a lawyer, a top flight available to them  THIS IS A GENERAL RETAINER where attorney makes his time available for representation  Many attorneys charge a retainer and bill that against their time and refund any money that is left over  She cannot take cases where she is conflicted out o In typical case, lawyer takes retainer and bills his/her time and paralegal time and refunds difference o Money goes into attorney trust account  R. 1.5, lawyers are only ;permitted to charge a reasonable fee o Unreasonable fees may subject attorney to discipline o What would a lawyer in that community, with that level of skill, charge for that case, how difficult, how complex, how successful was the attorney in handling the case, was the case taken on a contingency or hourly basis o Contingency fee may be allowed to charge more b/c he is accepting some of the risk    Non-refundable fees (Cooperman) o In NY, where you have a special, non-refundable fee and lawyer charges a minimum amount for taking a case, and does NOTHING and refuses to refund money even though he does nothing, is NOT permissible in NY General retainer is permissible b/c lawyer is paid to be available for certain cases; Lawyer is earning the fee; he is conflicted out of other cases; Typical retainer agreement is where attorney gets the money upfront just to make sure he gets paid and works against that sum and if there is anything left, he refunds the money Contingency fees may pose a conflict btw lawyer/client are permissible unless they are in writing o Contingency fees cannot be done in criminal or matrimonial cases  - 13 - PROFESSIONAL RESPONSIBILITY – OUTLINE WHO PAYS FEES  The AMERICAN RULE is that each side pays his or her attorney’s fee  6 MAJOR exceptions to AMERICAN RULE of paying attorney’s fees 1. Contract provides for fee shifting a. If there is a contract that provides that someone else would pay the attorney’s fee i. Many standard form leases that if tenant breaches the lease, and LL has to sue t recover, tenant will have to pay LL’s attorney for having to sue to collect rent Attorney’s fees may be allowed as an item of consequential damage a. i.e., an individual who says that he has full proof system where you can avoid paying taxes and IRS is throwing you in jail for tax evasion; if you were to sue the idiot who sold you this system for fraud as CONSEQUENTIAL DAMAGES, then you could sue him for being a fraud feasor as a result of fraud, i.e. tax evasion, and having to sue, BUT CANNOT GET reimbursed for Private Attorney Generael Doctrine a. If in individual is successful at lawsuit which benefits the public, then the individual should have his fees paid for by a losing party i. i.e., environmental cases ii. US Supreme Court said that in Alyeska case, the court held that private attorney general doctrine will NOT be allowed absent a statute authorizing it b. Some jurisdictions allow it Common Fund Doctrine a. Cable company fee is way too high b. Sue cable company and get $100M rebate for everyone in city c. Through lawsuit, you get common fund available for everyone d. Common Fund Doctrine says that everyone who benefits from the fund should get a $9.50 rebate rather than $10 and have those $.50 go to pay lawyer and share in cost of paying for attorney b/c everyone benefits from it Courts have inherent power to hold parties in contempt if they violate court rules and engage in frivolous tactics, and court can sanction someone and make them pay other sides attorney’s fees (get your self held in contempt) a. Maybe divorce cases where spouse with money is required to pay attorney’s fees If there is a statute or rule providing for fee shifting (BIGGEST EXCEPTION) a. Under Fed. R. Civ. P. 11 states that if someone files frivolous pleadings, court may impose sanctions which may include fee shifting b. Civil Rights Attorney’s Fee, 42 USC 1988, i. Prevailing plaintiffs can recover attorneys fees ii. Key under statute is who is a prevailing plaintiff (recover judgment or get court order settlement, must be a change in legal rights of the parties) to entitle someone to recovery of attorney’s fees 1. How much do you get? a. Lode Star formula? Hourly rate X reasonable hours i. Take reasonable hourly rate and see what other lawyers in community charge (complexity, etc.) and multiply by hours worked, only use those Hours that are justifiable and use rate that is justifiable 2. 3. 4. 5. 6. - 14 - PROFESSIONAL RESPONSIBILITY – OUTLINE Goldfarb v. Virginia State Bar, 421 US 773 (1975) MINIMUM FEE SCHEDULES Goldfarbs contended that minimum fee schedule published by VA bar constituted price fixing in violation of Sherman act. Goldfarbs engaged a lawyer to do title search on home they wanted to purchase, but state law required only an attorney to do this. They consulted numerous attorneys in VA none of whom would go below VA minimum fee. Appeal’s court held that it was NOT price fixing. RULES: HOLDING: Minimum fees mandated by state bar may constitute price fixing in violation of the Sherman Act. Ct. held that VA minimum fee schedule was price fixing which violated the Sherman act and regulates interstate commerce. Ct. held that this was NOT a purely advisory fee schedule b/c VA attorneys were under considerable pressure NOT to violate state bar’s fix, rigid price floor. Evans v. Jeff D., 475 US 717 (1986) SETTLEMENT CONDITIONED ON FEE WAIVER Consent decree ending civil rights action contained a waiver of statutory attorney’s fees, a provision invalidated on appeal. RULES: HOLDING: a consent decree ending civil rights action may contain a fee waiver Ct. held fee waivers are allowed NOT barred by civil rights act, vindicate civil rights in so far as settlement is reached and trial is avoided. PRO BONO Under the model rules, R. 6.1, Pro bono is voluntary service and NOT required. R. 6.1: Voluntary Pro Bono Publico Service Every lawyers has a professional responsibility to provide legal services to those unable to pay. A lawyer should aspire to render at least 50 hours of pro bono publico legal services per year. In fulfilling this responsibility, the lawyer should: (a) provide a substantial majority of the 50 hours of legal services without fee or expectation of fee to: (1) persons of limited means OR (2) charitable, religious, civic, community, governmental and educational organizations in matters that are designed primarily to address the needs of persons of limited means; AND (b) provide any additional services through: (1) delivery of legal services at no fee or substantially reduced fee to individuals, groups or organizations seeking to secure or protect civil rights, civil liberties or public rights, or charitable, religious, civic, community, governmental and education organizations in matters in furtherance of their organizational purposes, where the payment of standard legal fees would significantly deplete the organizations economic resources or would be otherwise inappropriate; (2) delivery of legal services at a substantially reduced fee to persons of limited means; OR (3) participation in activities for improving the law, the legal system or the legal profession. In addition, a lawyer should voluntarily contribute financial support or organizations that provide legal services to persons of limited means. NOTE: Lawyers may be required to perform pro bono work if judge assigns you to a case. Some lawyers have argued unsuccessfully that 13 th amendment prohibiting indentured servitude was violated. Lawyers are NOT required to do the work but there are some substantial interests in the less fortunate. Gov’t creates the need for lawyers in the first place. Cant represent someone unless you are a lawyer. Should there be a general, bar wide tax HYPO:  Mary is Partner  Joe is an associate  Mary lunches and golfs with client  Joe gets all the work  He works 22 hours a day  $70K a year  Mary earns $700K  R. 1.5(e) is inapplicable b/c they are in the same firm o R. 1.5 (e) – Lawyers who are in separate firms must assume joint responsibility, put reasonable fee-splitting agreement in writing, client must approve it after a disclosure by attorneys; o What does “assume joint responsibility mean”?  If something happens in the case, she would be liable; she does NOT have to do 90% of the work, and she can keep retaining clients in this manner o If there is NOT a written agreement btw the attorneys on the 90-10 fee split o Joe does the work after Mary refers the client, and client pays Joe  Joe does NOT have to pay the 90% b/c the agreement is NOT in writing o If Joe does NOT follow the rules, the court will say that (1) you did NOT follow the rules and entered into an illegal agreement; and (2) the court will NOT enforce the agreement  Joe benefits from the illegal agreement and benefits from NOT following the rules - 15 - PROFESSIONAL RESPONSIBILITY – OUTLINE CONFLICTS OF INTEREST 1. 2. Conflict between the lawyer’s interest and the client’s interests or other 3rd persons Conflicts between representing 2 different clients a. R. 1.7, is general conflict rules b. R. 1.8, deals with specific conflicts } } } } } Concurrent Conflicts Governed by R. 1.7, 1.8 3. 4. 5. 6. 7. Former representation, R. 1.9 Imputed Disqualification, R. 1.10 a. When does One lawyer’s taint disqualify everyone else in the firm Gov’t lawyer, R. 1.11 Corporation, R. 1.13 Lawyer as a witness, R. 3.7 a. When can a lawyer be a witness in a case in which he is involved b. Matter of Neville, 147 AZ 106 (1985) CLIENT LAWYER CONFLICTS – BUSINESS INTERESTS Atty Neville represented Bly, a real estate broker. Neville purchased some oprtions in Bly’s property. Neville bought property from Bly. Lawyer did NOT represent client in this complicated 3 way deal. Mr. Neville gets censured from ethics complaint. Mr. Neville was NOT representing Bly in this transaction but attorney was NOT allowed to disclaim any responsibility for this case RULES: Whenever lawyers knowingly acquire an ownership, possesssory, security or other pecuniary interest ADVERSE to a client, the client must be give a reasonable opportunity to seek the advice of independent counsel Under R. 1.8, rule requires that the attorney tell the client to get independent counsel to do this and give client that opportunity Ct finds that an attorney should tell the client the consequences of the transaction, not just disclaim lack of representation Under R. 8.8, business dealing btw attorney and client are prohibited Censure is a written statement of poor counseling and goes into your file and there is public notice of it HOLDING: Ct. holds that lawyers who knowingly acquire ownership or other pecuniary interest adverse to client\, the client must have time to go to another attorney. This rule applies regardless of any intent to defraud client. Ct. tries to protect the client, and client might assume that attorney is looking out for his interest. Client presumably trusts the lawyer and thinks that the lawyer will NOT take advantage of him. Ct finds that an attorney should tell the client the consequences of the transaction. Further, under R. 1.8(a), besides attorney being disciplined, the client may want money damages. If lawyer has taken advantage of the client and not given client the opportunity to get independent counsel. Without complying with R. 18 and 8.8, client will get out of deal and attorney will end up being sanctioned. NOTE: Mr. Neville could NOT have simply verbally disclaimed that he did NOT represent Mr. Bly in this case. Should have put it in writing and required client to sign something stating that client understands that attorney is NOT representing the client Gellman v. Hilal, 159 Misc. 2d 1085 (NY Sup. Ct. 1994) CONFLICTS – RELATED LAWYERS & SIGNIFICANT OTHERS Gellman sues Hilal. Gellman retains lawyer Bogaty, whose Wife, Brody, had previously represented the two doctors (Hilal) in a malpractice case for exact procedure in question. Plaintiff is represented by the wife’s husband who is suing these two doctors in a related malpractice case. Husband and wife are NOT in the same firm. Cases are NOT the same but are very much related. Doctors are concerned about potential conflict. Wife has financial interest in blabbing b/c husband is on a contingency fee basis. RULES: Lawyers who are related as parent, child, sibling or spouse may represent direct adversaries only if the client consents after consultation If close relationships are going up against each other in the same case, they need to disclose that to the client. Client must make the decision. HOLDING: Court found that the husband had to at least notify the client, but lawyer was NOT disqualified. A lawyer has an ethical responsibility and it is assumed that they will abide by professional conduct. Ct. is worried about potentially greater disqualifications but are also worried about interest of plaintiffs choice of his counsel; Ct. is concerned about two career families where both are lawyers and court does NOT want to disqualify everyone. NOTE: Under Comment 11, under R. 1.7, attorney must disclose close personal relationship to clients where there may be a conflict of interest. Do the Ethics rules that require them to disclose invade their privacy? If they want to keep their relationship and not have to disclose it, they should NOT take case and go up against their spouse/lover/child. CLOSE RELATIONSHIP constitutes lovers - 16 - PROFESSIONAL RESPONSIBILITY – OUTLINE CONFLICTS WHEN LAWYER IS REPRESENTING 2 DIFFERENT CLIENT Cuyler v. Sullivan, 446 US 335 (1980) A-C CONFLICTS: CRIMINAL CASES / DEFENSE LAWYERS Sullivan was accused of murder along with two accomplices. Attorneys are also representing co-defendants/accomplices at later trials. Attorneys rested without presenting evidence after state’s case. Suliivan claimed that he wanted to take stand and testify on his own behalf. Attorneys say they did not put him on b/c he had a bad record and did NOT want to impeach him. Not really clear why they did NOT put him on. They were concerned that he would point finger to their clients and send them away. ISSUE: Did this result in a 6th amendment violation and entitle him to a new trial? Does potential of a conflict of interest sufficient to invalidate conviction? RULES: the mere potential of a conflict of interest in representation is NOT sufficient to invalidate a conviction. You do NOT have to prove that their would have been a different result at trial, merely that the lawyer’s performance was adversely in conflict with the decision HOLDING The supreme court said that in the 6th amendment context, where there is a criminal case situation and lawyer represent multiple defendants, that where there has been NO OBJECTION raised at trial, in order for client to get new trial, he has to show that there is an actual conflict of interest that adversely affects his attorney’s representation. Ct. held that mere potential cannot invalidate conviction. Conflicts of interest exist in every situation involving multiple defendants. Multiple representation would be over b/c there would always be a conflict. Ct. found that the defendant must demonstrate that there must be an actual conflict of interest adversely affecting his lawyer’s performance. HOWEVER, Court finds that the court of appeals did NOT judge this case under the appropriate standard and remanded the case for termination. The appeals court had to review for an actual conflict. NOTE: On remand, what was the trial court supposed to do in terms of deciding whether or not to give this guy a new trial? An unconflicted lawyer would have put Sullivan on the stand. Lawyers had conflict b/c they were representing multiple clients. Competent criminal counsel would have put him on the stand. On remand, the defendants were put on the stand. Wheat v. US, 486 US 153 (1988) Wheat was indicted, along with Gomez and Bravo, for violation of federal narcotics law. Iradale was set to represent Mr. Wheat in the 3rd of these cases. Gov’t wants him to be disqualified b/c of his conflict of interest as to his two other clients whose plea agreement had NOT yet been accepted. The gov’t thought that if Iradale brought in the other two defendants he would NOT be able to cross-examine them in an effective way. Gomez-Barajas had a plea deal in the works, and Wheat’s testimony would NOT be required. In the unlikely event that it did NOT go ahead, and Wheat were called to testify he would say that he did NOT know Gomez from a hole in the wall. Wheat even provided a waiver for the conflict of interest. There is a serious potential that there would be a conflict. Bravo might be called to testify against Wheat. Bravo testified that he did NOT know Wheat in response to Gov’t’s cross examination. RULES: trial court can refuse to permit representation by a specific attorney, where the representation of defendant would present serious potential conflicts, even in the face of a waiver. Ct. held that trial court can refuse allowing representation where it would create a serious conflict for attorney. Ct. held that 6th amendment guarantees right to effective counsel, NOT THE COUNSEL OF CHOICE. 6 th amendment is supposed to ensure a fair trail, which creates a presumption of getting counsel of choice. However, court’s have interest in NOT getting overturned and being affirmed on appeal, so they may exclude conflicts of interest as to attorneys. HOLDING: Young v. US Ex Rel. Vuitton Ex. Rels Fils SA, 481 US 787 (1987) CONFLICT OF INTEREST INVOLVING PROSECUTORS Vuitton et Fills, S.A. filed copyright action against Young. Court charged Young with criminal contempt for violating cease and desist order. Counsel for Vuitton was appointed prosecutor, Young was convicted and court of appeal affirmed. Special Prosecutor was appointed to prosecute people who were enjoying from selling knock-off hand bags. ISSUE: Whether or NOT the prosecutor should be able to act in this capacity when he is regularly employed by Vuitton? RULES: Prosecutor has a (1) duty to dispassionately try the case and (2) pursue justice CANNOT have a special prosecutor who has a clear, unambiguous relationship with Vuitton Inc. Criminal prosecutor is NOT to convict, but to seek justice. Prosecutors are forbidden by federal law and professional ethics from representation the government in which they, their family, or their business associates have an interest. R. 3.8, special responsibilities of prosecutor Counsel for a party that is a beneficiary of a court order may NOT be appointed as prosecutor in a contempt action alleging a violation of order HOLDING: Ct. held that the role of the criminal prosecutor is to seek justice. Prosecutor in contempt action cannot have interest in enforcing order upon which contempt is based. Here, counsel would have had to serve the interests of Vuitton and justice. Vuitton attorney/prosecutor will pursue his own interests in knock off hand bags. He will put his $ case on the top. Here, he would NOT be pursuing ends of justice. Ct. rev’d the ruling. - 17 - PROFESSIONAL RESPONSIBILITY – OUTLINE Fiandaca v. Cunningham, 827 F2d 825 (1st Cir. 1987) CONCURRENT CONFLICTS OF INTEREST – CIVL CASES Plaintiffs comprised of female inmates at NH penititentiary brought suit where they claimed that they were denied equal protection b/c male inmates enjoyed superior facilities. NH Legal Assistance (NHLA) represents inmates. NH agrees to house them in laconia State School (LSS). NH Legal Assistance also represents NH state school. Settlement offer creates conflict at remedial stage and pits one client’s interest (Fiandaca) against another client’s interest (LSS). State raises objection and says that NHLA has to get out . LSS does NOT want prisoners there. ISSUES: Should state have standing to raise a conflict where conflict is affecting prisoners and state school? RULES: an attorney may NOT represent two clients when a settlement offer made to one is contrary to the interests of another Loyalty to client is materially limited when a lawyer cannot recommend a possible course of action due to loyalty to another client. A POTENTIAL conflict may be waived where (1) there is a reasonable belief by the attorney that he can zealously represent both interest and (2) a knowing consent by the affected parties. 1st Cir. held that the State did have standing to raise conflict. 1 st Cir. allows anyone to raise conflict. If it is a concurrent conflict, you must be party affected. If NOT the party affected, you must show how conflict affects you HOLDING: Ct. held that where settlement offer is made and a lawyer owes allegiance to a party opposed to settlement, then that lawyer cannot use his independent judgment in advising his client. Ct. found that this was an actual conflict which couldn’t be waived. NOTE: R. 1.10, defines term “firm” to include a legal services organization. Thus, it SHOULD imputed disqualification disqualify everyone in NHLA same as it did in the private firm context. HOWEVER, Legal Aid Services might be the only lawyer available for some really poor persons, and if disqualified, the court would be harming large number of people in society. Further, some jurisdictions do NOT automatically conflict them out, where they have separate branches and keep separate files and don’t talk to each, and the courts are NOT willing to be so strict with legal aid. NOTE: Model Rules govern MPRE; model rule says firm includes legal services. Simpson v. James, 903 F2d 372 (5TH Cir. 1990) MALPRACTICE BASED CONFLICTS Law firm represents the buyer and seller of the business. Simpson operated a restaurant which she desired to sell. Hames was attorney who had previously represented her. Oliver, James’ partner, facilitated transaction where Business was sold to Tide Creek for $1K down and $400K in notes. The buyer, Tide Creek, goes bankrupt and they did NOT adequately secure the assets or PURSUE insurance claims against the defendant and failed to adequately protected seller’s interest when buyer’s business went bankrupt. Plaintiff goes about offering expert testimony that there was a conflict for firm to represent buyer/seller in same transaction. Experts argue that firm could have done a great job in protecting Sheila Simpson, by getting security against assets of the business and not just the stocks, pursued insurance claims, etc. Simpson sued James and Olvier for representing both sides of transaction. She was awarded $200K. RULES: an attorney may commit malpractice by representing both sides in a business/commercial transaction. Proof of conflict was neither necessary nor sufficient for proof of malpractice case to get liability HOLDING: Ct. held that by representing both sides, it would make it difficult for an attorney to represent one side zealously as required by professional standards, and that Attorney failed to safeguard client’s interests by creating a lien on Tide Creak’s stock rather than business assets. Jury award is affirmed. NOTE: Would the mere existence of conflict give rise to malpractice? In this case, there is a Conflict, but NO NGELIGENCE and no liability. In a different situation, where they only represent the seller and get no stock, insurance, or asset protection. There is NO CONFLCIT, but there is negligence and damages and liability. Proving conflict does not get you malpractice. Lack of conflict can still get you damages from malpractice. Conflict suggests that as a practical, evidentiary matter, it sure makes it easier to convince a jury and to find that the attorney screwed up and was negligent INSURANCE TRIANGLE CONFLICTS NOTE: Public Sevice Mutual Insruance Co. v. Goldfarb, 53 NY2d 392 (1981) Goldfarb was a dentist who was accused by one of his patients of sexually assaulting her while under sedation. Criminal charges were filed and he was convicted. The victim filed a civil suit where he tendered to his professional liability carried, PSMI, and PSMI responded by seeking declaration that alleged acts did NOT trigger duty to defend and indemnify Goldfarb. They sough declaratory judgment for non-insurance coverage. ISSUES: What is the conflict of interest that Goldfarb is complaining about? RULES: Duty to defend is broader than duty to indemnify or pay, which is narrower. Duty to defend arises when any aspect of an action might be covered. HOLDING: Ct. held that PSMI had duty to defend throughout trial and duty to indemnify existed until it was found by jury that dentist did NOT intend to harm victim. So PSMI has a duty to defend him, but depending on how facts spin out, possibly to indemnify him. (If turns out that he intended to hurt her, they would NOT have to pay for punitive damages. Ct. finds that PSMI interests are separate from Goldfarb’s b/c they are better off allowing him to be found to have intentionally harmed the victim b/c then they don’t have to indemnify him (thereby avoiding to pay punitive damages). Ct. finds that He is entitled to separate counsel b/c his interests are NOT the same as insurance company. Dr. Goldfarb is supposed to pick his own counsel. NOTE: It is a public policy concern and indemnifying him for punitive damages and he has a criminal charge against him. If he acted intentionally but did NOT intend to harm her. - 18 - PROFESSIONAL RESPONSIBILITY – OUTLINE HYPO  1.8(d) states that attorney cannot enter into a business transaction with client prior to conclusion of representation o Abby can get a special retainer, contingency fee which is held until representation is required o Lawyer agreeing to be paid in movie rights might get him convicted for death penalty on purpose HYPO  Insurance company offers plaintiff who has out of pocket damages of $20K  Insurance company offers $22K  Lawyer suggests that he wait it out until you get $60K  Client says he is desperate and needs to pay his bills first  Can lawyer loan client some money so that client stand up to big bad insurance company with low ball offer  Under R. 1.8(e), a lawyer may NOT provide financial assistance to a client except in the advance of court costs or litigation or lawyer may pay court costs, filing fees, etc. o Cannot give client personal loan to pay food, rent or personal bills  Why would you allow contingency fees, but not allow small personal loans which create an even greater conflict HYPO:  Strip club owner by ER  Authorities come after the dancer for violating public nudity  ER pays bills of attorney to represent dancer  ER tells lawyer that he wants attorney to assert first amendment right  Nude dancing is a form of expression  Constitutionally protected  Prosecutor says that if you plead guilty, I will let you off for a $50 fine  ER tells attorney that they will NOT plead guilty on principal  Who does attorney owe responsibility to? o Always to the client o Must inform client that ER wants to pay the bill and obtain informed consent o Attorney must do what is in client’s best interest and always represent the interest of the client o Information relating to representation od a client is protected as required by R 1.6 HYPO:  Rich elderly old lady offers attorney to put his office on the grounds of his estate  She wants lunch occasionally and will put office on estate for NO fee  He cannot draft agreement and recommends a real estate attorney  Lawyer sets up new consult with attorney with whom he shared office space  Takes her in his case  Real estate attorney asks whether lawyer can stay outside  Real estate attorney asks her if she wants it, and he drafts it up and she signs  Elderly lady’s relatives try to get contract rescinded o Attorney violated ethics rules, exercised undue influence, and they want deal unwound so that they end up with property except with the lawyer  Did her attorney act appropriately?  There would have been no problem where another attorney drafted the agreement; he cannot draft it himself  Under R. 1.8(c), a lawyer shall NOT solicit any substantial gift from a client, including a testamentary gift, or prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer, any substantial gift unless the lawyer or other recipient of the gift is related to the client.  Under R. 8.4(a), Lawyer cannot violate the laws and do so through the acts of another;  Is this a broad read of the two rules combined?  No, 2nd attorney was acting independently when he executes the will of the individual o The attorney did NOT act improperly nor exercise undue influence o Lawyer #2 was NOT that close a relationship and did what the client did what she asked him to do  Relatives did NOT get land and attorney made out pretty well  In Neville, the client was thinking the deal would be fair but it really was not  Here, the client is giving the property away and not seeking a fair business deal HYPO:  Karen Horowitz is a 30 year old jewish associate  Firm decides that it would rather NOT have her second chair the case b/c jury may be prejudiced against her  The firm tells her that she is off the case  Is this gender/religious discrimination? o They should have know the case would get this far  Firm can argue that the case might have settled o In civil rights act, ER could not dismiss African American waitresses b/c customers disliked them; and ER would be sanctioned for violating the civil rights act  However, private companies are different b/c Attorney has an ethical obligation to the client and maybe constitutional duty under 6th amendment if criminal case o Firm must do what is best for the client  Firm created mess for themselves by assigning her to this case in the past and changing her so late and now they will be subject to discrimination laws HYPO: (p. 209-210)  Andy cannot represent all 3 of these guys when there are different levels of culpability and where there is a prospect of having one role on the other  Completely impermissible in having one lawyer representing both HYPO  Guy is charge with murder; wife is charged as accomplice  One attorney represents them both  Prosecutor offers 3-6 year sentence if she testifies against Husband  Lawyer needed fees from both  Prosecutor seeks to have defense attorney disqualified  She was told to refuse deal by lawyer with conflict, which was similar to what was done in Cuyler case  Under Cuyler, 6th amendment rights were violated  She was sentenced to 20 years  Currently @ intermediate appellate court    Rule 6.1 strongly encourages lawyer to perform pro bono work but it does NOT require them to do so o However, a judge may draft you to do the work in a case No ethical problems where partner gets big bucks and associate gets 10% However where works is referred to an outside firm, then the fee splitting must be fully disclosed to client, client must consent, total fees must be reasonable, and referring lawyer must assume joint responsibility o Does NOT have to be split according to work performed if referring attorney agrees to accept joint responsibility; otherwise, split by work performed Conflict of Interests  If a lawyer is doing a deal with the client, under Neville, b/c there is an element of trust, the attorney needs to advise the client of the desirability of obtaining separate counsel, and that he does NOT represent the clinet, and the transaction has to be fair to the client o If there is a violation of 1.8(a)  Does not tell them to get separate counsel in writing  Doesn’t inform them of the consequences  Transaction was unreasonable  Client will be able to get out of transaction  Media Rights o Not permissible to agree to represent someone for media rights of case while case is NOT CONCLUDED  Attorney may want to make case more sensational to the client’s detriment (trial, death penalty makes a better book, but NOT good for client)  Substantial Gift o R. 18(c), attorney cannot receive nor can he prepare document giving her substantial gift from a client  R. 1.7, lawyer cannot let the fee payer influence attorney what is NOT in the best interest of the client o Client must be filly informed as to who is paying the bill o Lawyer cannot disclose confidential information to fee payer  Under R. 16., cannot disclose communication; Cannot disclose absent client consent - 19 - PROFESSIONAL RESPONSIBILITY – OUTLINE HYPO: (p. 218)  If your client won and lawyer is now representing someone else, then client lawyer interests may conflict  Basball hypothetical:  Venidnig machine andmurder see, entirely unrelated.  BEST DEFENSE would be to bring in Pete as a ub  Unconflicted counsel could point the finger o ffagsn=isn   1.10(a) – imputed conflict, no lawyer should enter into contact with another HYPO (p. 231)  Company “Exstant”  Needs expert witness  Can county accept that money and go ahead with the prosecution or is that a problem  Company gives state $5M to prosecution so that they can prepare a defense  Less than even handed justice (poor wont get it ) Prosecutorial Discretion HYPO:  Is she is exercising if she always does NOT vote for death penalty where statute leaves it up to her  Does she put her own interest over and above her client’s interest? o Is the 51% who voted for her the client? Is the entire state? HYPO:     (p.238) Hispanic and African-american were passed over for supervisory position Cannot afford a lawyer; lawyers do not think they can get a big enough fee Sheila cannot represent them both if they want the position, b/c the remedy would put them at odds o She could represent them if they want damages The issue is whether or not under R. 1.7(a)(2), there is a significant risk that the representation of one will materially limit the lawyers representation of another o Consent-able conflict requires full disclosure o She would be required to make full disclosure of inability to obtain same job for both What about if proof of Miguel’s case would undermine William’s case, where company discsriminates against Hispanics but NOT AfricanAmericans; o She may have to tell them up front o Under R. 1-7(b)(4), each affected client is informed of conflict confirmed in writing  Only in ILLINOIS it does NOT have to be in writing One law firm’s office in Chicago, is arguing against a county law that is taking land owners property. Same law firm’s office in LA is arguing for the law. See. Note 24, p. 33  If different jurisdictions, then you can do this Only time it will be a problem if you are going to set a precedent that adversely affects either client In general you can adopt contrary legal positions if different jurisdictions and not affecting the other case o o HYPO  Attorney represents D1 and D2 who are both accused of working together to rob B  Some disclosures by D1 to the attorney  Prosecutor wants to be able to subpoena the information that was disclosed by D1 to the attorney and use it to go after D2 o Attorney client privilege protects communication btw attorney and client o Prosecutor argues that privilege was waived b/c D2 was in the room  Common Interest/Joint Representation/Common Defense: The attorney is representing them both, so anything that is said will be privileged. Otherwise, you could never have an attorney pursue a joint representation case All four persons, A1 and A2, D1 and D2 sit to talk about defense o Prosecutor seeks to discover communications that were made in this conference o Asks D2 for communications btw A1 and D1, privilege would NOT be waived even though they have separate counsel If an attorney represents multiple clients in setting up a business, the attorney can say that what you tell me here will be confidential as to the outside world, but as among the clients, he cannot keep secrets and must disclose to those clients who are pursuing the same thing     HYPO: p. 264-65  RIO is lawfirm that messed up a public offering  Spindlecraft sues for $10M in complaint, but does NOT allege intentional wrongdoing  Associate discovers RIO manager Meredith highly probably intentionally sabotaged PO  the attorney is the duty to the client NOT the insurance company  they do NOT owe an obligation to tell the insurance company  if they tell on Meredith, then they harm one clinet by representing the other one o should they get separate attorneys at this point? o They may have to withdraw from representations  THEY HAVE TO TELL ONE OF THEIR CLIENTS what they learned while pursuing the representation *************************** R. 3.7Advocate Witness Rule – Lawyer as Witness  Lawyer cannot represent a client when in the same case the lawyer is likely to be a necessary witness in that case o It is too confusing to the jury/judge in bench trial b/c lawyer cannot act as advocate/fact witness  Under R. 3.7, client does NOT have option to withhold from calling the lawyer as a witness. R. 3.7 states that if it is likely for the attorney to be a witness, lawyer cannot represent client.  R. 3.7 does NOT apply if the facts are uncontested, (a)(2) related to representation, (a)(3) substantial hardship (BUT rare b/c exception could swallow the rule),  Under R. 3.7(b), you can have someone else in firm represent the client while the lawyer testifies and that will NOT result in imputed disqualification HYPO  Lawyer sees accident  Victim asks him to represent him  Lawyer cannot do both  But offers to get someone in his firm to represent him  If associate is going to represent the victim, the lawyer is going to say that the victim was proceeding agianst the red light and walked into the street o What is associate going to do when it comes to cross-examine the law firm partner o She is going to try to discredit him (drunk, etc.)  R. 3.7(b) permits lawyer to act as a witness where other lawyer from firm represents client, unless precluded from doing so by 1.7 or 1.9 o Associate’s interest might conflict with her representation  If she does a really good job cross-examining partner  R. 1.7, a reasonable lawyer could not reasonably believe that she could represent her client without conflicting with her interests - 20 - PROFESSIONAL RESPONSIBILITY – OUTLINE Analytica Inc v. NPD Research, 708 F2d 1263 (7th Cir. 1983) PRIVATE PRACTICE Malek was given stock by owners of NPD. Malek hires Mr. Fine from Schartz & Freeman while working at NPD. Fine has to determine value of stock to calculate taxes on stock and uses the financial info of NPD. Malek creates Analytica to sue NPD for antitrust behavior. Malek hires Scwhartz and Freeman for suit against NPD. NPD moves to disqualify Schwartz and Freeman from representing Analytica in lawsuit brought against them. Analytica argues that S&F never was NPD’s attorney they were Malek’s attorney, i.e., S&F represented Malek. RULES: A law firm may not represent former client in lawsuit against the former client’s corporate employer. For law firm to be disqualified (1) the case must be adverse to a client and (2) cases must be substantially related. A lawyer is prohibited from using confidential information that he has obtained from a client against that client on behalf of another one. Further, a lawyer may NOT represent an adversary of his former client: (1) if the subject matter of the two representations is substantially related…AND (2) if lawyer could have obtained confidential information from the 1 st representation that would have been relevant in the 2nd. Ct. will NOT look at whether CONFIDENTIAL INFO was taken and abused, AND will use SUBSTANTIAL RELATION test as proxy. (Ct. would have to Take lawyers on their word.) HOLDING: Ct. held that S&F would be disqualified b/c they had financial info which would be relevant to anti-trust doctrine. Court rejected argument that S&F Attorneys represented Malek and NOT NPD b/c Malek worked for NPD and NPD paid S&F fees. Further, NPD and Malek had comon interest in resolving stock transfer interest. NOTE: This is a problem for megafirms that have many clients. Also, it would be Potentially wasteful to NOT allow S&F to have access to their work product from NPD representation available for Analytica representation, so court’s take position that client can rebut presumption that it is all tainted if you can show that the Work Product does NOT contain any confidences. The presumption of the taint must be overcome - 21 - PROFESSIONAL RESPONSIBILITY – OUTLINE HYPO:  Trade association has 5 members, and give all financial info to trade association  Law firm Y represents trade association and sees all financial info of its members  Later, Law Firm Y represents X as attorney in lawsuit against A for breach o Law Firm argues that it represents Trade association NOT A  A giving information to Trade Assocaition had expectation that Law Firm would NOT use such confidential info in later litigation  In Westinghouse, b/c of expectation of confidentiality, there is an actual or virtual representation and A has reason to be upset when law firm goes against the former client HYPO: pp. 280-81  Divorce done by Clarrissa Esq. for Roth. Then Clarissa’s law firm then sues Roth b/c his company is tanking and the firm represents bank that funds Roth’s company  Are the matters substantially related?  Did what the attorney learn in divorce case potentially useful to creditor on going after him in trying to get promissory note paid?  Lawyer might know about Roth’s assets b/c he would have learned about it in the divorce  Knowledge of Roth’s assets would be useful knowledge in collecting those assets to pay debt to creditor  Legal issues in case are completely different (divorce/family v. creditor/financial)  Is there a likelihood that FACTS that were learned in 1st case could be used against former client in the 2nd case  Rule 1.10(a), prevents a firm of attorneys from representing a client where one of them practicing alone would be prohibited by Rules 1.7 or 1.9 unless the prohibition is based on personal interest of the prohibited lawyer and does NOT present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm Definition of firm in 1.0, comment (c), firm or law firm denotes lawyers, partners in professional partnership, pg. 8, comment (2), depends on the facts, and look for any formal agreement, office space sharing is NOT enough, 1.10, p. 47, gives same guidance, If you have a Chicago Office and Washington Office of same firm, it is all same firm, and they share info, the entire firm will be disqualified Rule 1.7(b), notwithstanding a concurrent conflict, a concurrent conflict can be waived if there is informed consent, the lawyer believes he can do the job competently and diligently, representation NOT prohibited by law, the presentation NOT involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal and each affected client gives informed consent, confirmed in writing o Lawyer must meet several requirements NO DUTIES OWED TO CLIENT AFTER REPRESENTATION IS COMPLETED HYPO: Record Store p. 281  Jane incorporates store, gets trade name, gets credit from Banks, etc.  6 months after store is done and she has gotten paid o  Is there a likelihood that FACTS that were learned in 1st case could be used against former client in the 2nd case Can she represent Wallace’s landlord for breach of lease? o Wallace breached lease by selling DVDs, musical instruments o If we assume that what Wallace is selling is on the shelves; she has NO confidential information o A DUTY OF LOYALTY might be violated b/c Lopez negotiated terms of lease agreement and by turning around, she would stab client in the back  If court allows her to represent LL, then since she created contract, she might be incentivized to put loopholes in client Even in the absence of any confidences, an attorney owes a duty of loyalty to a former client that prevents the attorneys from attacking, or interpreting work she performed, or supervised for the former client (p. 283) o In general, R. 1.9 protects confidences, but it also protects duty of loyalty where attorney cannot undermine its contractual agreements Can she represent community group in directing bus traffic? o Yes, she negotiated lease, getting credit, etc., NOT picking out location of the store  If she did pick the case, then she would have a 1.9 and 1.7 conflict and set herself up for malpractice for picking site on such a road Can she represent a competitor who wants to setup shop across the street? o Yes. o Under R. 1.7, concurrent conflict setting, Comment 6, on the other hand, simultaneous representation in unrelated matters of clients whose interest are only economically adverse, such as representation of competing economic enterprises in unrelated litigation, does NOT ordinarily constitute a conflict of interest and thus may NOT require consent of the respective clients o So, under R. 1.9 for former clients, you can specialize and do similar work for economic competitor, esp. since you can get away with it with concurrent clients       CLIENT CONSENT CURES ALL ILLS. Rule 1.9, lawyer who formerly representated a client in the matter shall NOT thereafter represent another person in the same or substantially related matter which that person’s interest are materially adverse to the interests of the form client UNLESS FORMER CLIENT gives informed consent in writing  3rd party should only have standing where there interests will be affected by the representation. In former client situation, only the affected parties have standing to raise conflict. If they consent to it, why would 3rd party care NOTE: advance waiver provisions in retainers are NOT given effect especially when dealing with unsophisticated clients  HYPO:  Lawyer represents C1 in property being deeded to other person  Client 2 wants to sue C1 b/c he ran over C2  Pursuant to Rule 1.7, cannot sue a current client without client consent and client 1 is NOT going to consent  Attorney wants to drop C1 and matters are NOT substantially related, so he is NOW free to accept C2 and sue former client  Jelco, Attorney breaches duty of loyalty. Hot Potato Rule – cannot drop a client like a hot potato to convert them from current client to convert them into a former client. (P. 287) o Firm CAN drop a client where it does NOT create the conflict o They cannot accept new clients or new litigation where it would create a conflict - 22 - PROFESSIONAL RESPONSIBILITY – OUTLINE Cromley v. Board of Education, 17 F3d 1059 (7th Cir. 1994) IMPUTED DISQUALIFICATION & MIGRATORY LAWYERS Cromley, HS teacher, sues under 42 USC § 1983, against Board b/c she was denied administrative positions b/c she complained of sexual misconduct. During pretrial litigation, her attorney Mr. Weiner goes from S&F firm to Schapiro Firm as partner. Schapiro represents Board of Ed. RULES: When a lawyer in a case moves to the other party’s law firm, the attorneys for the other party must be disqualified where the representations are substantially related, unless the presumption of shared confidences can be rebutted. (1) Court will determine whether a Substantial Relationship exists between the subject matter of the prior and present representations; If substantial relationship exists, we must ascertain whether the (2) presumption of shared confidences with respect to the prior representation has been rebutted; If we conclude this presumption has NOT been rebutted we must then determine (2) whether the presumption of shared confidences has been rebutted with respect to the present representation. Failure to rebut this presiumption would also make the disqualification proper; HOLDING: Ct. found that (1) Mr. Weiner was partner in charge of case while representing Cromley; (2) Schapiro cannot rebut presumptions as to prior representations, HOWEVER, Schapiro made sure that there were no sharing of information, no sharing of fees, files were in separate locations, everyone signed written memos that they were NOT to discuss case with Mr. Weiner. Court finds that the CHINESE WALL (screening procedures) in place are sufficient. NOTE: There are 2 separate rules: (1) The model rule, which does NOT allow screening and (2) the 7 th circuit rule has been adopted in other jurisdictions, which allows screening Under Model Rules, there is NO screening and entire Schapiro firm would be disqualified b/c conflict is imputed.  Under Model Rule 1.9(b): A lawyer CANNOT knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client, where matters are substantially related, without materially adverse information, and without client consent; AND  Under 1.10(a): The entire firm is prohibited from representing a persons if prohibited by doing so under R. 1.7 and R. 1.9 NOTE: 7th Circuit  Advances lateral moves of attorneys  Client and firms to which tainted attorney moves benefits  In order for screening to be effective must be DONE IMMEDIATELY!!! Model Rules  No screening is allowed  Former client benefits b/c confidences are protected and she has trust in system that such confidences will be protected o Model rules will NOT sacrifice the interests of clients o Board of Ed. Also gets to keep its counsel which causes them to benefit Armstrong v.McAlpin, 625 F2d 433 (2d Cir. 1980) GOVERNMENT SERVICE Altpin worked for SEC and was investigating the McAlpin looting case. Armstrong was appointed as the receiver to recover money that McAlpin had swiped. The firm of Gordon & Hurwitz was retained by Armstrong. Altman became attorney for Gordon & Hurwitz. McAlpin contended that Altman’s presence was a conflict. Dist. Ct. denied motion b/c it found screening procedures sufficient. RULES: It is NOT a PER SE ground for disqualification that an attorney involved in a government investigation joins a private firm involved in litigation concerning the same matter. Under Model Rule 1.11(b): Altman’s firm would NOT be disqualified b/c he was TIMELY SCREENED from any matter and is apportioned no fee. NOTE: in Cromley, that screening is NOT allowed when lawyer goes from private practice to private practice HOLDING: Ct. holds that while ABA rules require disqualification, public policy concerns allow gov’t attorneys to take private practice jobs if they are properly screened out of the case. Ct. finds that Gordon & Hurwitz and Attorney Altmin are NOT disqualified for basically having been in charge of this case b/c he worked for SEC. POLICY JUSTIFICATIONS are such that many attorneys are encouraged to work in government and if they come out tainting everything, then government service would be discouraged. Otherwise, Typhoid Mary’s are NOT going to be hired by private firms b/c gov’t work taints firm. - 23 - PROFESSIONAL RESPONSIBILITY – OUTLINE HYPO:  If Weiner had moved to Scarriano firm and 3 motnhs later it takes precautions to lock up files and not talk to him about the case  Paralegals is not subject to bar and lawyers have more to lose HYPO: p. 292  Monk worked in IN firm on products liability cases  The cases were for toaster oven defects  KGR is informed of his previous history  He is clearly being disqualified b/c of access to confidential information  the IN firm…  former firm duty may be breached by going to work on this case and potentially using information that he has learned from other case    Lawyer represents new client against former client o Substantial related While the rule is designed to protect confidential ifnroamtion, there is also a duty of loyalty, such that an attorney who was to terminate a lease and then represents a client later by trying to get out of a lease, and that involves of attacking one’s handiwork under Rule 1.9 Hot Potato Doctrine: lawyer who si representing C1 and C2 now wants to sue C1, on a matter unrelated of lawyers resprensetation of C1, lawyer cannot simply drop C1 like a hot potato, and take C2’s case b/c the matters are NOT substantially related o Court will treat it is as a CURRENT CLIENT situation, NOT a former client situation b/c current client’s must consent to be sued In Cromley, where the lawyer moves from Law firm 1 to law firm 2, the test is o (1) are the matters substantially related  (2) satisfied this prong? o Rebutt presumption that he had confidential information  7th circuit in a few jurisdictions, but NOT model rules, would allow the 2nd presumption to be rebutted; the FIRM though NOT the moving lawyer would allow them to be tainited  The model rules would NOT allow screening in this situation and everyone in the firm would be TAINTED  MODEL rules might NOT beleive that the lawyer had been effectively screened In Armstrong, Lawyer moving from gov’t to private practice Rule 1.11(a), if it is same case, and gov’t has move from gov’t to practice and lawyer had personal and substantial responsibility, then unless gov’t consents, that layer will be disqualified o NEW firm can avoid disqualification by screening him 1.11(c), If you require confidential information working for the gov’t and lawyer is inposition to use tht information, then he/she will be disqualified regardless of the matters bing related, however, firm can screen former gov’t attroneys If it were NOT considered the same MATTER as defined in 1.11, then she could do the case as well could her firm o Definition of matter does NOT include drafting o If not disqualified under Rule 1.11, then R. 1.9 does NOT prevent her from attacking her handiwork, and she can attack her handiwork  Under R. 1.9, Comment 1, current or former gov’t lawyers must comply with this rule 1.9 to the extent required by Rule 1.11, and 1.11(g) says that a lawyer currently serving as a gov’t EE must comply with 1.9  Everyone else is subject to 1.9(c) which prohibits blabbing about confidential infromation      HYPO: P. 304 Can Woman represent tenant after putting together city legislation by investigating, drafting, etc.?  Under R. 1.11(a), she cannot represent client in connection with a matter in which where she participated personally and substantially as a public officer or EE, unless appropriate gov’t agency gives consent confirmed in writing o No, b/c investigation and subpoena power would be included within definition of “matter” as defined under R. 1.11(e)(1), o Is this the same matter? (NOT a substantially related matter, but the exact same matter)  Yes, it is the same matter, she drafted the law  Rules & Comments basically says that 1.11(d) that a lawyer who is currently serving as a public officer/EE is subject to R. 1.9, the former client conflict rules o Rule 1.11 says that you cannot use 1.9, attacking handy work under Rule 1.9, is NOT available b/c she is not subject to attacking b/c she is NOT a current public EE/officer  Even if this is NOT the same matter, it is a problem where she gather CONFIDENTIAL GOVERNMENT INFORMATION, which is stuff that she could only obtain from government sub poena, then she is precluded from using that information against the land lord under Rule 1.11(c)  Gov’t EEs are always screened to avoid taint of impropriety, under R. 1.11(b) & (c), even though the attorney is tainted you can still screen her to avoid law firm from being tainted  Rule 1.9 ONLY applies where there is a CURRENT public EE not a former one. - 24 - PROFESSIONAL RESPONSIBILITY – OUTLINE Nix v. Whiteside, 475 US 157 (1986) TRUTH & CONFIDENCES – HISTORY OF RULES Altercation btw Whiteside and another person resulted in death of another. HOWEVER, Client changes his story and says he saw something metallic to support his claim of self-defense b/c drug dealer reached for gun. Prior to testifying Whiteside told his attorney that he had seen a gun. Client is told that he will NOT be put on stand if he lies. Client is convicted and argues that 6th amendment was violated b/c he did NOT let him get on stand and lie. RULES: criminal defendant is NOT denied right to counsel if his counsel refuses to allow him to commity perjury. R. 3.3 – Candor toward the Tribunal: A lawyer should NOT knowingly make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer Lawyer may NOT offer evidence that lawyer KNOWS to be false Layer has duty to take all LAWFUL measures to exonerate client, but NOT lie or violate law or help others to do so. HOLDING: Ct. found that lawyer’s performance did NOT fall below standard required by lawyers and there is NO harm b/c you have no right to benefit from perjuring yourself. Ct. holds that criminal defendant has not right to commit perjury. Thus, counsel was NOT ineffective preventing client from breaking the law. No 6th amendment violation. Mullaney v. Aude, 126 Md. App. 639 (1999) HARDBALL - UNCIVILIZED CONDUCT While in deposition, one of the attorney used "babe" and "bimbo" words to demean the opposing counsel. The words were used after commenting that the opposing counsel's client was going to see "another boyfriend" in a tort case of transmitting genital herpes. RULES: HOLDING: a lawyer may NOT use gender-biased tactics to gain advantage during the course of the litigation process. Ct. held that court has duty to require attorneys to practice professionally by refraining from behavior/statements that are BIASED/prejudiced on sex, race, religion, national origin, disability, age, sexual orientation, or socioeconomic status. Court held that the remarks were "a blatant example of 'sexual [deposition] tactics." (p. 391). Ct. notes that strategy and tactics are part of litigation, and throwing your adversary off-balance may well be a legitimate tactic, it is not legitimate to do so by the use of gender, sex, race, religion, etc. Foul language and name calling are NOT permitted. Attorney ends up getting sanctioned under the Maryland code and fined. Would the attorney be subject to sanction under the model rule (see rule 3.4(a) and (d)) (**note in the case Mullaney, NOTE: the attorney was sanctioned under Maryland code)? (what about rule 8.4(d)?)  If the attorney was trying throw-off the opposing attorney, then can be sanctioned under 3.4 and 8.4.  If the attorney was just being a jerk, then the attorney may be sanctioned under 8.4(d). Matter of Thonert, 733 N.E.2d 932 (Ind. 2000) OBLIGATION TO REVEAL ADVERSE LEGAL AUTHORITY Attorney represented a client charged with operating a motor vehicle while intoxicated. The attorney claimed, due to absence of counsel at the time of videotaping, the client had not made a knowingly, intelligently, or voluntarily waiver of his rights. This argument was ruled adversely in the Indiana S. Ct. which was decided in 1995. The attorney appealed before the Circuit Ct. but failed to cite or argue the Indiana S. Ct.'s holding. In addition, although the attorney advised his client of the failure to disclose the S. Ct.'s case, the attorney failed to advice or explain the impact of this failure in the Circuit Ct. RULES: an attorney has an affirmative duty to disclose adverse legal authority within the controlling jurisdiction to the court when the opposing party fails to do so and the attorney is aware of the law. The Circuit Ct. held that the attorney violated Indiana Rule 3.3(a)(3) which provides that a lawyer shall not knowingly fail to disclose to a tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel (p. 397). The concept underlying this requirement of disclosure is that legal argument is a discussion seeking to determine the legal premises properly applicable to the case. HOLDING: NOTE: NOTE: Under the model rules, the attorney would have be sanctioned under rule 3.3(a)(2) for failing to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel: o Under rule 3.3(a)(2) - the precedents has to be disclosed only in the relevant controlling jurisdiction. o Under Rule 1.4(b) - "A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation." that under 3.3(a)(2) - even if the precedents can be distinguished from the present case, there is obligation to reveal the precedents and attorney can duly note the distinctions to the court. Rubin v. Schottenstein, Zox & Dunn, 143 F.3d 263 (6th Cir. 1998) DUTY NOT TO AID IN FRAUD Attorney/Client did NOT let investor know of financial troubles. Atty tells investor NOT to talk to bank directly. He invests, acct frozen, corp. declares bankruptcy, and investor loses all of his investment. RULES: attorney has duty to disclose material facts based on contact with third parties relevant to the representation. Status of being attorney does NOT confer immunity from iability if the attorneys aids a client in actionable or illegal conduct. HOLDING: Ct. holds that conversations btw Attorney & client were examples of direct contact that triggered requirement to disclose. Attorney must represent his client’s interest, but be honest and disclose material facts disclosing information to 3rd parties with which he comes in contact with in promoting client’s interests. He can NOT simply promote client’s agenda. - 25 - PROFESSIONAL RESPONSIBILITY – OUTLINE HYPO 1: Guy is charged with robbery. Guy gets home from work at 6PM. Watched news until 6:30 PM. Went out and got haircut for 30 minutes. Armed robbery occurred at 6:15. Then guy changes his story saying that he got haircut before watching TV.  R. 3.3, (a)(3), A lawyer may refuse to offer evidence other than the testimony of a defendant in a criminal matter that the lawyer reasonably believes to be false o Client must be given the benefit of the doubt and allow him to testify HYPO 2:  Lawyer goes to barbershop and asks who was in barbershop at the time. 5 ministers, 5 priests, 5 rabbis and 5 imams. All these 20 peoples say that the defendant was NOT there btw 6-6:30PM and that he got his haircut later on.  Should lawyer give the client of the benefit of the doubt now, or does he know it? o If the words have meaning, then at some point you have enough facts to know something; HYPO 3:  Lawyer notices that the watch is screwed up, and client was mistaken but it doesn’t appear that he was purposefully lying but that he is only mistaken  A lawyer should NOT knowingly offer evidence that the lawyer knows to be false;  Is the lawyer who avoids acquiring the information to make plausible denials  If client tells you a secret, and client persists In screwed up v o Don’t call him at all o Call him and allow him to testify in narrative form o Withdraw from the case and allow him to find o Don’t question you know he wouldlie  If he lies at trail, you gotta rat him out to jduge o Judge may dseclaration a mistrial  Under Model Rules, you cannot let client allow to testify falsely  Under R. 1.2(d), you can withdraw from case HYPO: Anatomy of a Murder  Jimmy stuart the defense lawyer is preparing Lt for killing barney quill to testify who raped his wife  Violated Rule 3.4(b) or 1.2(d)?  R. 3.4(b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law;  R. 1.2(d) lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law. o Defense attorney counseled witness? Tried to get client/suggested the defense? Tried to get client to support the defense? o ASK witness/client the FACTS /narrative approach DO NOT TELL THE law up front and ask client to get him to fit into law LITERAL TRUTHS  Witness who evades, etc., is NOT lying  Witness who purposefully misleads and witness knows lawuyer misspoke and knows what lawyer is talking about, witness was misleading,  no alert of question for lawyer to know that questions was screwed up HYPO: LA Law clip  It is permissible for defense counsel to shake the testimony of a witness that he or she knows is telling the truth o Ethics rules say you cannot put on a witness you know is lying o You can cross-examine a witness as defense counsel when you know the witness is telling the truth  Defense counsel is trying to create reasonable doubt o Got her to appear to be a liar just b/c she could NOT speak good English ABA Standards for Defense Function, Standard 4-7.6, (p. 453)  (a) Interrogation of al witnesses should be conducted fairly, objectively, and with due regard for the dignity and legitimate privacy of the witness, and without seeking to intimidate or humiliate the witness unnecessarily; (b) defense counsel belief or knowledge that the witness is telling the truth does NOT preclude cross-examination   Defense attorney is trying to convince jury that he knows is wrong and trying to create a false inference; R. 4-7.7, reframing her testimony, so long as he does NOT misstate any of her testimony o Merely argument o He did NOT misstate the facts o Adversary system allows for REFRAMING statements o FALSE INFERENCES may be created HYPO: p. 375  Criminal defense attorney; client admits guilt but has ski mask at subway station  Witness saw man remove mask at subway station  Can you argue that witness lied on loan application and she cannot be trusted here? o YES b/c you can help to DRAW FALSE INFERENCES  Can bring in witness who says client was at BK 5 blocks away; and 10 minutes away which is difficult  R. 4-7.4 Defense counsel can argue all REASONABLE inference from all evidence in record  Lawyer is NOT presenting facts to the jury - 26 - PROFESSIONAL RESPONSIBILITY – OUTLINE    He is just making an argument Each side will present own arguments, jury should decide case from evidence before you TECHNICALLY, it is permissible to ask them to draw FALSE inference so long as you do NOT misstate the evidence and use evidence only in the record HYPO:  Defense lawyer says that based on personal experience, he knows this guy is NOT guilty  R. 3.4(e), a lawyer shall NOT…in trial, allude to any matter that the lawyer does NOT reasonably believe is relevant or that will NOT be supported by admissible evidence, assert personal knowledge of facts in issue except when testifgying as a witness, or state apersonal opinion as to the justnetss of a cause, the credibility of a witnees, the culpability of a civil litigant, or the guilty or innocence of an accused; OR HYPO:  you don’t have this, but defendant passed the polygraph  Cannot do this b/c this evidence was NOT in the record HYPO: Prosecutor  Defendant is at BK, with video tape with good resemblance, can prosecutor impeach BK witness b/c she lied on loan application? ABA Standard 3-5.7 –Cross-Examination  (b) the prosecutor’s belief that the witness is telling the truth does NOT preclude corss-examinition, but may affect the method and scope of the cross. Prosecutor should NOT use the power of cross-examination to discredit or undermine a witness if the prosecutor knows the witness sis testifying truthfully  Prosecutor has a different duty, his duty is to the court; he is attempting to seek the truth, NOT To convict innocent people R. 3-5.8, argument to jury  In closing argument to the jury, the prosecutor may argue all reasonable inference from the evidence in the record. The porsecutor should NOT intentionally misstate the evidence or mislead the jury as to the inferences it may draw o Prosecutor cannot argue for false inferences HYPO:  Closing argument in personal injury case. Professor’s Student was representing the Plaintiff. Plaintiff was at cross walk and gets hit by defendant driving a car  Rule 3. 4(d) and 3.4(e), Lawyer CANNOT appeal to the prejudices of the jury o Cannot say favor my client, 40 year school teacher in small town, over big city NYC plaintiff; plaintiff probably did it on purpose. Do NOT use bias or race. Lawyer cannot allude to any matter that is NOT relevant. o Jury found for defendant HYPO:  Client says he was abused  Attorney gets shinrk and shrink testifies  Client’s sister calls attorney and tells him client was NEVER abused  Does lawyer have an obligation under 3.3(a)(3) to take reasonable remedial measures? o b/c he has called shrink to stand and talked to his client, and testified that client has been abused and is a nut job o do you have to recall the shrink to get him to correct it? Call the judge?  If lawyer is running the risk of perpetuating a fraud, o A lawyer shall NOT knowingly…offer evidence that he knows to be false. If a lwyer the lawyers client or a witness call by the lawyer has offered material evidence and the lawyer comes to know of its falsity the lawyer shall take reasonable remedial measures including if necessary disclosure to a tribunal.  If he does NOT know for sure, then he does NOT have an obligation to take reasonable remedial measures, and he would be precluded from doing so b/c he would have to reveal confidential information o Does lawyer have a duty to investigate? Is sister lying? Etc.  Duty of competence and diligence does NOT require PI - 27 - PROFESSIONAL RESPONSIBILITY – OUTLINE SUMMARY 1. What happens if you know your client is going to lie; then what do we do? a. Counsel to tell the truth. If the client do not agree, then threaten not to put them in the stand. b. If lie on the stand then, under 3.3, if the lawyer knows then, need to take reasonable steps to ratify. i. Rule 3.3(b). 2. Duties under rule 3.3, lawyer has to take reasonable steps to correct (even if the client did not know that he was lying). 3. Witness testifying in a narrative form. a. Under some jurisdiction, it is allowed. b. Under model rules, no narrative approach because the model rules states you cannot lie. i. Even withdrawing is less then idea approach. c. Rule 1.1 and 1.3 forbids lying. 4. Coaching the client to lie (reference the craziness to kill his wife's boyfriend - the video); not allowed. 5. Literally truth statement under Bronston and DeZarn case (see the comparison). 6. Cross-examining truthfulness of witnesses. a. Civil matter and defense attorney are allowed. b. Prosecutor cannot, if she knows that the witness is telling the truth, then the prosecutor cannot "shake" (i.e. bad inference) the witness. 7. Argument. a. Both civil prosecutor, defense attorney can ask for reasonable inferences. b. One cannot seek to use the jury's prejudice to one's advantage. (Additional aspects of ethics and advocacy - what we can get away with and what we cannot get away with)  FRCP Rule 11: (a) Signature. Every pleading, written motion, and other paper shall be signed by at least one attorney of record in the attorney's individual name, or, if the party is not represented by an attorney, shall be signed by the party. Each paper shall state the signer's address and telephone number, if any. Except when otherwise specifically provided by rule or statute, pleadings need not be verified or accompanied by affidavit. An unsigned paper shall be stricken unless omission of the signature is corrected promptly after being called to the attention of attorney or party. (b) Representations to Court. By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances,-(1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation; (2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law; (3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.     ***NOTE that the attorney should reasonable steps to investigate the allegation brought on by potential client. a. Under rule 11, both the client and attorney may be sanctioned if the client lies and attorney does not investigate for the truthfulness of the facts. Rule 11(2)(A) states that the client may not be sanctioned for monetary penalty for not knowing the law. Rule 11 states that the judge has the "discretion" whether or not to sanction when rule 11 is violated. "Safe-harbor provision" - gives the opposing party three weeks (21 days) to withdraw the offending document before the motion for sanction can be decided. a. Only works when the other side is seeking safe-harbor and safe-harbor is not automatic (Rule 11 (C)(1)(A)). (HYPO - see rule 3.2 and 4.4(a))  A defense lawyer seeks to strike a motion for improper service (the motion was served via mail). The client did not know about the improper service, but the attorney advises the client to do this. o Rule 3.2: A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.  Under this rule, the attorney probably will not be sanctioned. o Rule 4.4(a): In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.  Under this rule, the  **note that rule 3.2 and 4.4 does not do much for non-frivolous lawsuits (i.e. lawsuits that is not obviously frivolous). Rule 3.1 (like FRCP rule 11) will sanction for frivolous suits. A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established. - 28 - PROFESSIONAL RESPONSIBILITY – OUTLINE (HYPO - a judge asks for a precedent from an attorney. The attorney provides the precedents but provides the holding exactly opposite to the holding in the case) Is the attorney subject to sanctions? (Misstating facts, precedents, or the record)  Rule 3.3(a)(1) provides that a lawyer "shall not … knowingly make a false statement of fact or law to a tribunal." o **note that in a mistaken omission, it provides sanction under rule 11 (probably whacked with legal fees), but not under rule 3.3(a)(1). NEGOTIATION AND ETHICS IN NEGOTIATIONS Rule 4.1: - In the course of representing a client a lawyer shall not knowingly: (a) make a false statement of material fact or law to a third person; or (b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6. a. ***if the opposing attorney was to ask if my client was drank, then we cannot lie but we can say that "I am not at liberty to talk about the facts, my client did not grant other privileges other than to negotiate."  Question on p. 421 of Lucy McIntosh. a. Can Lucy not say anything (no obligation to disclose) and just withdraw from the case? i. Since Lucy had drafted the contract perhaps she had duty to disclose. ii. Rule 1.2(d) - A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law. iii. Rule 4.1(b). iv. Rule 1.6(b)(2) and (b)(3) - these rules permit disclosure. 1. If the disclosure is permitted because of "reasonable certainty to occur" because of foreseeable harm, then one is obligated under rule 4.1(b). What can Lucy have done? i. Lucy could have made a "noisy withdraw" - "I am withdrawing and I am disaffirming the contract I have made." Can one not tell the truth in respect to settlement what the client is asking in terms of bottom line (in other words, the client wants $10K but the attorney states that the client will not take less than $20K)? Yes, under rule 4.1, you can puff. b.  SUMMARY from Previous Class:  If attorney fails to do research and figure out law can be civily sanctioned under Rule 11  A party cannot be subject to monetary penalty if the problem or the complaint is without legal basis b/c it is his attorney’s business to know the law  There is a safe harbor provision that lets an offending complaitn to be withdrawn within 21 days if party seeking sanctions o There is NO safe harbor if judge seeks sanction Delay Tactics  Under Rules 4.4 and 3.2, it does say that you are to expedite litigation consistent with interest in client o If there is NO other interest but just delaying, you might be subject to sanctions  If motion, pleading s without legal basis then YOU ARE SUBJEC TO SANCTION UNDER R. 3.1 for bringing frivolous pleading and under R.3.2 and 44 for delaying o Hard to get you for delay if NO frivolous pleading finding b/c of loop hoes Attorney who called opponent names during deposition o Subject to civil sanctions o 3.4 and 8.4 sanctions if he was trying to obstruct party from access to information o 8.4(c)- conduct prejudicial to the administration of justice (sexist remarks 3.3(a) – if attorney misconstructs and misstates authority, facts, etc. 3.3.(a)(2) – requires knowledge of adverse legal precedent, attorney who knows about a case but does NOT cite it then she can be subject to sanctions o If she SHOULD HAVE KNOWN, then judge can wack her with R. 11 sanctions Under R. 4.1, attorney can be disciplined if he KNOWINGLY makes a false statement of law or fact to a 3 rd person o Can be disciplined if he knowingly fails to disclose information where disclosure is required to assist in client fraud  Cannot disclose if breaking confidentiality rule  However, lawyer can disclose where client has used lawyer for fraud that will result in harm to another person’s property  Reveal under 6.1(b) and then 4.1(b)  Lawyer can be civilly sued by helping criminal fraud with client  No immunity from committing torts     - 29 - PROFESSIONAL RESPONSIBILITY – OUTLINE Tekni-Plex v. Meyner & Landis, 89 NY2d 123 (1996) CONFLICTS & CONFIDENTIALITY IN ENTITY REPRESENTATION Lawyers for technoplex, Meyers and Landis, LLC,. Mr. Tang was sole SH. Lawyers had done legal research and cases for Technoplex. Tang sells out his interest to a shell corporation. Technoplex merges into the shell Corporation. Dispute between technoplex and Mr. Tang whether or NOT there were some breaches of warranty in connection with this sale and some misrepresentations about compliance with the pollution laws. Mr. Tang wants the law firm of M&L to represent him with respect to his dispute with Technoplex. Tekni-plex says there is a conflict of interest. ISSUE: Is the cases substantially related to prior representation? Did Lawyers have confidential information that can be used against former client? How, if at all, is there a conflict of interest? Is law firm seeking to turn on its former client in a substantially related matter? counsel CANNOT represent a present client against a former client involving matters that are substantially related to the prior representation and where the interests of the present client are materially adverse to the interests of the former client. Rule 1.1, the lawyer’s duty is to corporation. Duty is to the Corporate entity and that a merger, acquisition, buy outs, does not change the entity and any changes do NOT allow attorney to later claim it is a different entity.  Attorney would be conflicted out As o general business information that had been acquired by Law firm in its long representation of technoplex, the lawyers have to give that information to the company When attorney is representing individuals forming a corp. and corp. is subsequently formed, ordinarily, the attorney is viewed as representing the corp. all the time, NOT the SH/constituents, even when there was NO corporation, and while it is possible to have joint representation, most courts held that it is difficult to find joint representation ABSENT A SPECIFIC AGREEMENT FOR JOINT REP. Absent a specific agreement IS ENOUGH FOR JOINT REPRESENTATION. NOTE: Some factors may indicate joint rep.; HOWEVER, on a General level, where case is NOT corp. matters, it is DIFFICUL TO FIND JOINT. Further, Attorney must get consent of everyone concerned in order NOT to have a conflict of interest. The 5 part test of whether there is or isn’t going to be joint representation focus on where there is NO specific agreement to represent consitutent individually. HOLDING: Ct. holds that Merger does NOT change corporate entity and lawyer who previously represented such corporation has a conflict after merger b/c such a change does not remove conflicts created and confidential information obtained in prior representation. Ct. focuses on the client’s expectation of confidentiality with respect to the merger, and protects these expectations with respect to confidentiality with respect to those disclosures. IT IS IMPORTANT to note that in the previous 20 years, M&L would probably have acquired confidential information that they could use that info against T in representing Tang. Thus, cases are substantially related in that respect. NOTE: In Technoplex, the corp. can assert the AC privilege. Mr. Tang asserted the ACP b/c some communiciations were the subject of acquisition where he reposed confidences in counsel Law firm that reps. Corp. cannot turn its back on corp. and decide to rep. one of the principal’s of the corp. and NOT tell its other principals of the representation NOTE: Jesse v. Danforth, It is as if once the corporation is formed, the attorney never represented D1, ONLY THE CORPORATION WAS THE CLIENT, so this would NOT be a conflict. You are NOT stabbing a client in the back b/c you never represented D1 (p. 143) RULES: Matter of Bevill, Bresler * Schukman Asset mgmt. Corp., 805 F.3d 120 (3d Cir. 1986) RULES: If the officer/SH wants to claim that he is being represented in addition to the corporation, then you must satisfy the 5 part test (1) they approached counsel for the purpose of seeking legal advice; (2) they must demonstrate that when they approached counsel they made it clear that they were seeking legal advicce in their individual, rather than their representative capacities; (3) they must demonstrate that the counsel saw fit to communicate with them in their individual capacities; (4) they must prove that their conversations with counsel were confidential; and (5) must show that the substance of the conversations did NOT concern matters within the company or the general affairs of the company; R. 1.13 says that duty is to entity NOT to constituent elements, absent some agreement or absent satisfying the 5 part test HOLDING: 3d Cir. says that unless you have a specific agreement to represent them individually, it will be reluctant to infer representation unless those five factors were met  Some courts may be willing to find duty owed to both, BUT NOT THE MODEL SET FORTH IN R. 1.13, - 30 - PROFESSIONAL RESPONSIBILITY – OUTLINE HYPO:  D1, D2, and D3 all go to lawyer  All speak about gizmo that enables plastic surgery right away; great gadget  Ask the lawyer to form a corporation and give him confidential information about themselves and what they hope to accomplish o Lawyer form “Dr. Corp.” entity  D1 lops off someone’s nose by accident with the gizmo  P goes to same lawyer and asks that he sue D1 for lopping off his nose  D1 states that lawyer represented him previously in a substantially related matter and lawyer is stabbing D1 in the back b/c D1 gave him much confidential information  Can lawyer represent P v. D1 after previously representing D1? o The book suggested that it is okay R. 1.13 – Organization As Client (b) If a lawyer for an organization knows that an officer, employee or other person associated with the organization is engaged in action, intends to act or refuses to act in a matter related to the representation that is a violation of a legal obligation to the organization, or a violation of law that reasonably might be imputed to the organization, and that is likely to result in substantial injury to the organization, then the lawyer shall proceed as is reasonably necessary in the best interest of the organization. Unless the lawyer reasonably believes that it is not necessary in the best interest of the organization to do so, the lawyer shall refer the matter to higher authority in the organization, (her immediate supervisor) including, if warranted by the circumstances to the highest authority that can act on behalf of the organization as determined by applicable law. (c) Except as provided in paragraph (d), if (1) despite the lawyer's efforts in accordance with paragraph (b) the highest authority that can act on behalf of the organization insists upon or fails to address in a timely and appropriate manner an action, or a refusal to act, that is clearly a violation of law, and (2) the lawyer reasonably believes that the violation is reasonably certain to result in substantial injury to the organization, then the lawyer may reveal information relating to the representation whether or not Rule 1.6 permits such disclosure, but only if and to the extent the lawyer reasonably believes necessary to prevent substantial injury to the organization. HYPO:  Where attorney finds out about potential harmful product, that action by officer is in violation of legal obligation and will result in harm to organization, then she has to go to higher or even highest organization  Lawyer can reveal information outside of the client/lawyer realm to a 3rd party only as believes necessary to prevent substantial injury  IF ANYONE IS GOING TO BE IN TROUBLE MAKE SURE IT IS NOT YOU o REVEAL TO THE PERSON TALKING TO YOU SAYING THAT YOU ARE NOT HER LAWYER AND THAT YOU REPRESENT THE COMPANY  She can then NOT sue you b/c she gave you confidential info and you stabbed her in the back when you tell company what she told him HYPO  Company came up with NEW product that had great potential for a diet drug  Large corp. wants to buy company  A is president and 51% SH  B is 49% SH  A wants to sell corp. to dummy corp  A goes to corp. counsel to get appraisal for B and L forgets to tell appraisal about NEW product  B sues A for $ he lost  B sues L b/c A has no $ and tries to hold L responsible  L says that he was following orders from company president  Is L liable to B or is his only obligation to the company? o Lawyer is liable under duty of care issues  DUTY TO COMPANY  If he is knowingly assisting one fiduciary A in usurping a corporate opportunity from B  Jury did NOT buy it basically o Lawyer did NOT know what was inside the envelope with documents b/c he did NOT know about bogus appraisal o Greenwich, cited on pg. 473 HYPO  Client confronts lawyer, Casey, who was stealing her money by converting it to her personal gains  Client goes to Attorney with her boyfriend and asks that he gets money back from Casey  Attorney Himmell threatens disciplinary action for converting client money but Casey says he will give it back  Himmell sues Casey in court for breach of agreement, and includes as attachment an agreement NOT to rat Casey out to disciplinary committee if he returns client’s money o IN disciplinary committee said that Himmell breached his ethics by NOT squealing and Mr. Himmell is NOW subject to discipline for NOT squealing  Mr. Himmell’s defense was that the client never authorized me to reveal this information and wanted me to keep it secret so that she could have some leverage, and all that information was privileged and COULD NOT BE REVEALED o IL ethics rules say that if conversation is privileged, then attorney is NOT req’d to reveal it  HOWEVER, IL Supreme Court in Himmell found that the conversation was NOT privileged b/c client came with her boyfriend and she had NO expectation of confidentiality - 31 - PROFESSIONAL RESPONSIBILITY – OUTLINE Rule 8.3 Reporting Professional Misconduct (Maintaining The Integrity Of The Profession) (a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority. (b) A lawyer who knows that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge's fitness for office shall inform the appropriate authority. (c) This Rule does not require disclosure of information otherwise protected by Rule 1.6 or information gained by a lawyer or judge while participating in an approved lawyers assistance program.  Could lawyer have claimed more successfully b/c conversation was protected under R. 1.6? o Rule 1.6 Confidentiality Of Information (a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b). (b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: (1) to prevent reasonably certain death or substantial bodily harm; (2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer's services; (3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client's commission of a crime or fraud in furtherance of which the client has used the lawyer's services; (4) to secure legal advice about the lawyer's compliance with these Rules; (5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client; or (6) to comply with other law or a court order.    R. 1.6 does NOT have a waiver provision, Himmell was nailed b/c conversation with client was NOT considered privileged Under model rule 1.6, the information was ethically protected, and he was NOT allowed to disclose without client consent and so he was NOT allowed to disclose, THIS WOULD HAVE BEEN A BETTER DEFENSE HYPO  If you send targeted mailings to potential clients, you must save copies for 2-3 years so disciplinary committee can review your letters and make sure you are not lieing to people  L1 says he cleaned out office and threw them all out b/c he threw everything older than 1 year  L2 discovers that attorney violated this requirerment does he have a duty to disclose the violation o NO B/C L1 doesn’t show dishonesty, preventing him from practicing law  L1 tells L2 that he heard a rumor from X that told Y that Casey was converting client funds and this gets to L10  Does L10 have a ethical obligation/duty to squeal on Casey for converting client funds o R. 8.3 is IMPLICATED IF L10 HAS KNOWLEDGE, and 20th hand rumor is NOT knowledge - 32 - PROFESSIONAL RESPONSIBILITY – OUTLINE Weider v. Sculla  L lies to client Weider who is also attorney in same firm repeatedly about loan and closing, etc. for a co-op  Weider goes to party and tells Katzowitz that Lubin was lieing non-stop and requests that he is fired and reports him  Katzowitz tells Weider that you need to have sympathy for him  Firm fires Weider after he is finished working on a big case  Weider is upset b/c he is fired for whistleblowing  NY Ct. of Appeals decides that Weider has a cause of action in contract that the ethics rules are part of the contract (impliedly) between Weider and the law firm but that he does NOT have a contract in tort, so his damages are limited (NO emotional distress, etc.); he can only collect damages on an implied contract theory  Ultimately, NY Ct. of Appeals found that Weider did have a cause of action in contract, though NOT in tort, and submitted to arbitrator, and at least 10 years later, he got some damages o Amount of damages were $100 in hole for amount spent on counsel o Weider was out of work for several years as a result of this o In front page of Wall Street Journal they said that they fired him b/c he was a incompetent attorney  He is NOW a law clerk in Queens trial court o Appellee was telling his friends that the disciplinary authority will NOT come after him b/c he has friends on DDC o Lubin, Esq. got license to practice in California;  NY never did anything to him  He was a pathological liar  NY disbarred him upon his disbarment in CA  Professor wrote amicus brief on Weidner’s behalf o Chief Judge Wacktell asking about public perceptive kick  He went off deep end b/c he started trying to blackmail her after a brutal break up  This is at a time when his own wife is a millionaire  She was friends of FBI director  He was locked up and sent to jail  He wrote a book while in jail o Judge Kay, she became the first female chief justice on NY Ct. of Appeals  Weider said that he would have done it over again  His parents were holocaust survivors and they are evil and will not let them get away with it  He now has changed his tone b/c he is unsure if he would do it again    Under R. 1.13, if attorney knows that an officer/EE is engaged in an act or refuses to act in a way that will result in harm to corporation, he or she must act as necessary (by taking it to higher ups in corp.) o Under 1.13(C), where it will undoubtedly result in harm to corp. then he may go outside of corp. by revealing some confidences If person at corp. gets private/confidential info from EE, then he must make it clear that attorney reps. Corp. NOT person giving R. 8.3, requires lawyers that when they KNOW, not mere suspicion (serious acts, not trivial ones) that another lawyer has misconducted himself, the lawyer is required to disclose, BUT under R. 1.6, confidentiality rules take precedence over duties to rat out; o Otherwise, you are subject to discipline Weeder case, he lost his job b/c he ratted out fellow EE o NY Ct. of Appeals held that he had a cause of action incontract but NOT in tort b/c code of resp. is an implied term btw associates in firm when they are hired  QUALITY OF LAWYERING IS REGULATED  The quality of lawyering is regulated (and Lawyers are deterred from incompetent representation) through the ____________________________________________________________BEFORE you are ADMITTED o Requirement of a degree from accredited law schools  UNLESS you are in CA and want to take 2 bar exams  In NH you do NOT need to be accredited to take bar exams  NY has apprenticeship  Lincoln apprenticed himself out o Can anyone off the street go to lawschool? o NO, you need LSAT, College Degree o bar examination passage requirement o character and fitness requirements ____________________________________________________________AFTER you are a LAWYER o Continuing Legal education requirements o Disciplinary committee review  Includes disbarment o Civil Liability = malpractice - 33 - PROFESSIONAL RESPONSIBILITY – OUTLINE In Re Mustafa, 631 A2d 45 (DC 1993) ADMISSION TO BAR: CHARACTER INQUIRIES While in lawschool, Mustafa used moot court progam money in his control for personal loans/usage, etc., for five months. RULES: in order to gain admission to the Bar, an applicant must demonstrate by clear and convincing evidence that he possesses good moral character and general fitness to practice law at the time of admission. Ct. held that application was rightly denied b/c conduct could be considered criminal and short period of time had between conduct committed and application for bar. Ct. found that he had NOT overcome clear & convincing burden. The character & fitness Committee is trying to predict bad conduct based on past acts. Thus, RECENT bad moral character was the key factor in this case. Mustafa didn’t have enough time btw the crime and recent good moral conduct. MUCH SUBJECTIVITY ON CHARACTER/FITNESS COMMITTEE HOLDING: Leis v. Flint, 439 US 438 (1979) ADMISSIONS PRO HAC VICE Flynt was charged in Ohio state court for various criminal acts. He hired attorney who was not admitted in OH. Dist. Ct. denied motion for pro hac vice, upheld on appeal. No trial until 6th amendment issue settled b/c defendant claimed he was entitled to counsel of his choice. RULES: 6th amendment protects fair trial interest in effective counsel, but does NOT create substantive right for pro hac vice. Pro hac vice = “for this turn” State shall determine whether it wants to have a pro hac vice procedure on its books; Absent specific rule allowing it, defendant cannot claim unfair trial b/c he could not get attorney’s admitted in OH HOLDING: The US supreme court held that lawyers do NOT have a constitutional right to get admitted in any jurisdiction. NOTE: In some cases that followed, the issue was raised that a client might have a constitutional right even if his lawyer did NOT have a constitutional right. What argument could a criminal defendant come up with that he should be entitled to have an out of state lawyer admitted pro hac vice to represent him Birbrower, Montabalbano, Condon and Frank PC v. Superior Court, 17 Cal.4th 119 (1998) SERVICES OTHER THAN LITIGATION CA arbitration case. Under CA law, interviewing witnesses out in CA in addition to doing some work in NY in conjunction with the upcoming arbitration. They go to get paid for their services and client raises question of whether they should get paid for their services even though they violated CA code for engaging in the unauthorized practice of law. RULES: Advising client and negotiating a settlement agreement in CA without a license constitutes the unauthorized practice of law and NO fee may be collected to the extent that the fee was for those services. Ct. barred them from collecting fees for work performed geographically in CA. Where they practiced was the dispositive factor; and NY work was compensated. NOTE: Under R. 5.5, the attorneys in Birbrower would NOT have gotten sanctioned for the unauthorized practice of law b/c R. 5.5 revision permitted arbitration representation, for which the attorneys in Birbrower were denied compensation. Prior to revision of R. 5.5., if there was Arbitration representation, too bad, that is the practice of law, so you are cooked. NOTE: While litigators can get permission to be admitted pro hac vice, nonlitigators could not. CA passed a law allowing this type of act to take place. HOLDING: Professional Adjusters v. Tandon, 433 NE2d 779 (Ind. 1982) UNAUTHORIZED PRACTICEOF LAW Professional Adjusters Inc. undertook to negotiate and adjust claim on behalf of Tandon against his insurer. RULES: adjusting and negotiating a claim on behalf of an insured constitutes law practice. If this is something that is common knowledge that everyone will know or is it something that requires more legal expertise, i.e. go to court, and is practice of law, for which the absence of a license will subject you to consequences When a person undertakes to represent someone in a claim against that person’s insurance company, he becomes the object of client’s trust and confidence and is ip so facto the law practice. HOLDING: Ct. holds that adjusting claim is UPL. Core element of law practice is giving advice to client an placing oneself in sensitive position of being client’s repository of confidence with respect to managing legal affairs.Ct. holds that the laymen could NOT be paid for legal services provided. Ct. concerned with public getting bad advice, harming the public, and protecting lawyer’s $ who would ordinarily get paid for those types of services. NOTE: IF Driver brings her car for check up. Mechanic sees sticker on light in front of the car and says that in this state the car must be inspected every two years. Mechanic has NOT engaged in the unauthorized practice of law (UPL) b/c if in fact the concern is potential bad/screwed up advice, then a mechanic has that information more correctly than a lawyer, so that person should NOT be subject to prosecution for giving correct information and should NOT be denied their fees. - 34 - PROFESSIONAL RESPONSIBILITY – OUTLINE Quality Control – Regulating Quality of Lawyering Serices  (1) Go to lawschool & graduate o Unless you are doing apprenticeship in a handful of states o Most all bars require accredited lawschool  Except CA where you can take mini bar  Graduate from bacehlor’s degree o Convince character committee  Subjectivity of process  In theory, character & fitness committee is projecting who will NOT be a good lawyer based on past instances of a conduct  i.e., Mustafa, converting student money into his personal use, which is similar to what he would do in real life  in gibb case, living with someone else does NOT show hat she is violating an unenforced ordinance  Hale should NOT have been admitted despite his free speech claim BAR APPLICATION ISSUES  Have you ever declared bankruptcy? o Is this a legitimate question for bar examiners to ask you?  Yes B/C IF You cannot maintain your own money how can you be trusted with client’s money? o Can you chose to NOT answer the question?  Applicant has affirmative obligation by clear and convincing evidence that you have good moral character o Have you ever been convicted of a traffic offense including speeding? o BE FULLY CANDID IN DISCLOSING IT B/C EVEN THOUGH THEY COULD NOT GET TO YOU FOR MINOR PAST INFRACTION, IF YOU ARE NO CANDID, THEN THEY CAN GET YOU AND YOU WOULD BE IN TROUBLE FOR A RECENT “LIE” ON BAR EXAM APPLICATION “Shattered Glass” p. 553  Stephen Glass, Georgetown law school evening student  Reporter @ the New Republic, made up 27 stories  Fabricated evidence, made website, lied, etc.  He resigned @ no one will hire him.  He has passed NY Bar exam  Should be denied admission? o Yes, recent crime with large fabrications as a national journalist o likely to do something bad in practice o as a lawyer he will be tempted to lie and this is a good reason to keep him out HYPO: “Racist Bar Applicant”  graduated from Southern Illinois  Professor knew Matt Hale  He is founder of the world church of the creator, and one of their tenets is that there are mudd people (any one but him – minorities, jews, Hispanics, gays, etc.)  Gets through law school and clerked for firm while in law school  He tries to get admitted to Bar in IL o Well known that he is a racist b/c he was on TV  IL is trying to keep him out b/c he is a racist  IL did NOT admit him and US supreme court refused to hear his case  What ultimately happened to Hale was bizarre beyond words o He was caught trying to put out a hit on federal judge and he is NOW in federal lock up o His friend, after Hale was denied admission, killed a black coach and Jew b/c they were black and jew  There was many phone calls to this guy before the murder  He put down as a character reference the guy who pulled the trigger  Are there freedom of speech issues? o Constitutional right to practice law? NO o Right to free speech? Yes - 35 - PROFESSIONAL RESPONSIBILITY – OUTLINE THE UNAUTHORIZED PRACTICE OF LAW FROM A LAYMEN’S PERSPECTIVE  Assisting someone in filling out insurance claim would require insurance law, contract law and doing the negotiation  Where someone is just using knowledge that everyone layman would have and the risk of error is small (don’t make right on red) or advice is evidence (sticker is good for 2 years, i.e., as would a mechanic), then not unauthorized practice of law  Where someone charges for service and gives particularized advice o Without charging, it is less likely that you will get nailed but you may be held in contempt of court o As a law student you may would be engaged in unauthorized practice of law by drafting a will  Consequences include getting prosecute, not collect a fee, and probably barred from receiving license  Purpose is to protect citizens of the state from bad advice, but sometimes Used as economic protectionism by some lawyers  Law firm partner who has associate who screws up would be subject to discipline under R. 5.5, only if he or she screwed up for failing to supervise, BUT NOT JUST AUTOMATICALLY on the hook for discipline simply b/c associate messed up o HOWEVER, under civil law, the ER is liable for EE’s acts if committed within scope of Emplyoment; HYPO: p. 585  MN lawyer advising ND man for federal tax purposes could NOT collect for work done in MN but NOT work done in ND o Competent lawyer in MN for federal tax law o Is it appropriate to use the unauthorized practice of law to protect lawyers from economic competition, not protecting clients HYPO:  CO lawyer could collect statutory fee from CA court in connection with advice given to CO citizen who is executor NOT withstanding that advice was about CA law and lawyer physically and virtually entered CA. CO citizen had Local counsel in CA. o If in fact we are concerned about protecting clients from getting screwed up advice? Then local counsel will know local law/rules, so client should be protected.  In addition to getting denied fees, lawyers who engage in the unauthorized practice of law are subject to discipline under R. 5.5 HYPO:   Local Office, Nat’l Practice p 572 If she gets local counsel and split fees, she keeps her fees and NOT denied like in Birbrower She can represent nationwide clients from DC      Is he subject to discipline? Under R. 5.1, the partner did NOT authorize the filing of this brief, and acted reasonably in exercising supervision, he is NOT subject to discipline Ethics rules governs whether the attorney is subject to disciplinary actions Is he subject to civil liability? Not governed b/ rule 5.1, and here the filing of the brief has committed malpractice, so since the associate is an agent/EE acting within scope of employment, the ER is automatically on the hook regardless of partner’s negligence o Partner is vicariously liable for torts of EE if EE has committed the conduct while in scope of the employment o Common law/agency law governs civil liability HYPO: p. 591  What should law firm partner should do when Spencer hires Catherine. Catherine starts dressing too risky and loses a lot of weight and hangs out at bars but has NOT screwed up any cases  Are clients associating with her? Are they put off by her? o Impose a dress code? o She dresses like art student  Ensure no spill over on cases? o If she is drunk on street?  At will EE can be fired for any reason whatsoever, so why NOT just do that?  Is her risk for potential liability sufficient to discharge her of her EE duties?  Handling of $M dollar cases may require someone to talk to her HYPO: p. 603-604  Daisy Case  Suggested that if in fact that you are NOT helping people with their particular problems and giving general advice in book, and you are NOT applying law to facts, then it is NOT THE UPL o Computer forms answering questions, then there is more specifically tailored advice, o TX went after them, but TX legislature found that this is NOT the unauthorized practice of law  Court’s have given themselves the right to decide what is or is NOT UPL, and NOT allow legislatures to dictate b/c of their role as the judiciary HYPO  Law firm associate who is working on a brief and he is under supervision of a partner and checked last draft and told him to make changes and then file brief  Associate decides to take it upon himself to rewrite an entire portion and then files it without partner having seen it;  Is law firm partner subject to discipline or to civil liability? HYPO  Real estate buyer is talking to her friend who is just finishing up 1L law school  Law student Friend says that if you buy this property and it turns out that there is an easement across property than there will be an encumbrance on your title  Is this something that an average person would know, or is this something that we want to protect the public from non-lawyers giving screwed up advice  Average person who does NOT attend law school does NOT know about easements/ encumbrances, so the law student would be giving legal advice  Subject to prosecution; Denied fees; Denied admission of law by bar if he engages in UPL; - 36 - PROFESSIONAL RESPONSIBILITY – OUTLINE Rule 5.5 Unauthorized Practice Of Law; Multi-jurisdictional Practice Of Law (a) A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so. (b) A lawyer who is not admitted to practice in this jurisdiction shall not: (1) except as authorized by these Rules or other law, establish an office or other systematic and continuous presence in this jurisdiction for the practice of law; or (2) hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction. (c) A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services on a temporary basis in this jurisdiction that: (1) are undertaken in association with a lawyer who is admitted to practice in this jurisdiction and who actively participates in the matter; (2) are in or reasonably related to a pending or potential proceeding before a tribunal in this or another jurisdiction, if the lawyer, or a person the lawyer is assisting, is authorized by law or order to appear in such proceeding or reasonably expects to be so authorized; (3) are in or reasonably related to a pending or potential arbitration, mediation, or other alternative dispute resolution proceeding in this or another jurisdiction, if the services arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice and are not services for which the forum requires pro hac vice admission; or (4) are not within paragraphs (c)(2) or (c)(3) and arise out of or are reasonably related to the lawyer’s practice in a jurisdiction in which the lawyer is admitted to practice. (d) A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may provide legal services in this jurisdiction that: (1) are provided to the lawyer’s employer or its organizational affiliates and are not services for which the forum requires sadmission; or (2) are services that the lawyer is authorized to provide by federal law or other law of this jurisdiction. Rule 5.1 Responsibilities Of Partners,Managers, And Supervisory Lawyers (a) A partner in a law firm, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct. (b) A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct. (c) A lawyer shall be responsible for another lawyer's violation of the Rules of Professional Conduct if: (1) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or (2) the lawyer is a partner or has comparable managerial authority in the law firm in which the other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action. - 37 - PROFESSIONAL RESPONSIBILITY – OUTLINE Togstad v. Vesely, Otto, Miller & Keefe, 291 NW2d 686 (1990) BREACH OF FID. DUTY – LIABILITY TO CLIENTS Togstad successfully sued Miller for legal malpractice, even though she had NOT formally retained him. Attorney told her that she did NOT have a cause of action. He says that he told her that her case is NOT one in which they would be interested in handling. RULES: A retainer is NOT required for an attorney-client relationship that may give rise to a malpractice claim to exist. FIRST element in malpractice claim is existence of attorney/client relationship Attorney should have foreseen that potential client would rely on his advice. HOLDING: Ct. held that retainer is NOT req’d, that actual retention is NOT req’d and that attorney who provide advice must expect that client who seeks him out will reasonably rely on his advice and follow it. NOTE: Appellate court had to believe the jury verdict and go along with the factual finding of the plaintiff and all reasonable inferences will go toward plaintiff. The jury bought her story. He should’ve referred her out and gave her the name of another attorney and he may do some research and check out SOL. He gave screwed up advice without doing any research. NOTE: DOCUMENT YOUR COMMUNICATIONS. A non-retainer letter and keep a copy for yourself. If it is a he-said/she\said, the lawyer will lose. Keep copy and send out nonretainer letter Tante v. Herring, 453 SE2d 686 (1994) SEX WITH CLIENT BREACH OF FID. DUTY Mrs. Herring contended that her prior attorney, Tante, was liable for inducing her to have an affair with him. RULES: it is an actionable breach of fiduciary duty for an attorney to use information –available to him because of the attorney-client relationship – to his advantage and to the client’s disadvantage Ct. held that Tante’s representation was NOT malpractice b/c he was a good attorney. However, he may have breached fiduciary duty if he used superior knowledge to their detriment. The Herrings can pursue their claim. HOLDING: Smith v. Haynesworth, 472 SE2d 612 (1996) USE OF ETHICS RULES AND EXPERT TESTIMONY In malpractice action against legal firm Haynsworth, the court excluded from evidence expert testimony regarding violations of Professional Conduct. RULES: Rules of professional conduct may be relevant in establishing legal malpractice. Plaintiff in malpractice action must establish standard of care that was violated and this is done by expert testimony. Expert can rely on rule violation to gauge defendant’s conduct so LONG AS Rule alleged to be violated must cover plaintiff’s situation A violation of an ethics rule does NOT create an irrebutable presumption that attorney did NOT meet standard of care. Breach of ethics duty can be used as GOOD evidence, but not conclusive, of breach of duty of care HOLDING: Ct. held that rule of professional conduct may be relevant in case and allows them where relevant to plaintiff’s situation. NOTE: States vary as to use of rules. Some exclude them etnirely, others make violation of rules malpractice per se. Here, in this case, there was a middle course approach/ - 38 - PROFESSIONAL RESPONSIBILITY – OUTLINE Hendry v. Pelland, 73 F3d 397 (1996) ETHICAL VIOLATIONS AS BASIS FOR REDUCTION /DENIAL OF LEGAL FEES The Hendrys sought return of fees they had paid attorney Pelland due to ethical violations, despite failure to prove causation between the alleged breaches and damages. Attorney represented women in divorce and decree required husband to keep life insurance policy to kids. Husband He changed policy to 2nd wife and kids get nothing. He dies and kids sue attorney for screweing up by not making sure that the dad maintain life insurance policy in accordance with the divorce decree. RULES: Clients seeking disgorgement of legal fees as their sole remedy for a lawyer’s breach of duty of loyalty need to PROVE that their attorney breached that duty NOT that the breach caused them injury. Normal rules of causation apply to compensatory damages awarded for professional negligence, this is NOT true for forfeiture of attorney fees. Any fees earned by attorney in representation that breaches his ethical duties are subject to forfeiture even if the breach did NOT proximately cause any damages to client. HOLDING: Any fees earned while breaching duty are subject to disgorgement b/c public policy dictates that an attorney SHOULD NOT profit by unethical behavior. Attorney must disgorge where it is simply shown that he breached duty of loyalty. Here, there is onflict in satisfying the interests of the mother / father and kids. Mother’s interest and kids interest are completely opposed to the father. Viner v. Sweet, 70 P3d 1046 (2003) CAUSATION & DEFENSES Appeal from damages award. Viners brought malpractice action against attorney Sweet b/c he failed to prepare legal docs to protect Corp. RULES: the plaintiff in TRANSACTIONAL legal malpractice action must prove that a more favorable result would have been obtained but for the alleged negligence. Ct. held that transactional malpractice requires showing damages awarded were actually caused by malpractice. Ct. seeks to avoid conjectural /speculative claims. Ct. states that attorneys are natural targets of a bad business transaction so client wills want to shift some loss and disappointment. THEREFORE, court requires Client to overcome hurdle of proving causation of INJURY was actually due to attorney’s malpractice. Ct. will protect attorney’s from being scapegoats. HOLDING: Peeler v. Hughes & Luce, 909 SW2d 494 (1995) RULES: CAUSATION IN CRIMINAL CASES Peeler accepted plea bargain. She H&L sued for malpractice after learning that offer of immunity had been offered but NOT communicated to her. a legal malpractice claim may NOT be brought in the context of a criminal matter ABSENT a showing that the plaintiff was exonerated from the conviction A criminal defendant who has been found guilty by plea or verdict, cannot sue his attorneys for malpractice unless conviction is later overturned on direct appeal or collateral attack thereby exonerating him and giving him standing to bring malpractice lawsuit. HOLDING: Ct. held that only innocent plaintiffs can negate the sole-proximate cause bar to their cause of action for professional negligence b/c criminal conduct is the cause of any injury suffered as a result of a conviction. OTHER GROUNDS OF LIABILTIY TO 3rd PARTIES Petrillo v. Bachenberg, 139 NJ 472 (NJ 1995) Purchaser /Petrillo brought action against, among others, attorney who had prepared and delivered to vendor in its prior capacity as real estate broker composite report of some but not all percolation tests performed on property, claiming that it was foreseeable that she would rely on report in making purchase decision. Attorney argues that he is NOT liable b/c he is NOT HIS CLIENT. In putting together with report, he only sent 3 pages of a two separate tests. The Superior Court dismissed claim against attorney at close of purchaser's case, concluding that attorney owed no duty to purchaser. Purchaser appealed. RULES: attorneys may owe a duty of care to NON-clients when the attorneys KNOW, or should know, that non-clients will rely on the attorney’s representations and the NON-clients are NOT too remote from the attorneys to be entitled from protection. Attorney is LIABLE where law firm/attorney KNEW, or should have known, that SOMEONE WOULD RELY ON IT AND THEY COULD REASONABLY FORESEE THAT PEOPLE WOULD RELY ON THEIR WORK. Ct. will consider (1) EXTENT to which transaction was intended to benefit the plaintiff, (2) the foreseeability of harm to the plaintiff and the (3) closeneness of the connection between Defendant’s conduct and the injury. HOLDING: Ct. held attorney Liable where Attorney could reasonably foresee that someone would rely on the reports that he passed onto real estate broker. (He should’ve known that someone would rely on his reports). At common law an attorney was NOT liable to non-client due to lack of privity, BUT this has been replaced with a rule that looks to OVERALL circumstances to ascertain whether the attorney should have liabiled imposed on him for injury to NON-client. Generally, attorney will be liable where reliance on document is reasonably foreseeable. The Supreme Court, Pollock, J., held that: (1) under circumstances as alleged by purchaser, attorney assumed duty to purchaser to provide reliable information regarding percolation tests, and (2) evidence was for jury as to whether attorney breached that duty and whether such breach caused purchaser harm. - 39 - PROFESSIONAL RESPONSIBILITY – OUTLINE ACTS JUSTIFYING DISCIPLINE: In Re Warhaftig, 529 A2d 398 (NJ 1987) DISHONEST & UNLAWFUL CONDUCT Warhaftig appropriated client funds with intention of repaying funds. He did so under financial pressure and returned most of the funds. RULES: an attorney may be DISBARRED for taking fee advances out of client funds even if he did so with the intention of returning the funds. MISAPPROPRIATION is prohibited whether or NOT the funds are stolen or borrowed. HOLDING: Ct. upheld automatic disbarment b/c attorney KNOWINGLYmisappropriated funds; he knowingly took fee advances, despite intent to return funds. Careless bookkeeping or accidental use will NOT disbar Esq. but he may be sanctioned. In Re Austern, 524 A2d 680 (1987) DISHONEST & UNLAWFUL CONDUCT Austern was recommended for censure for facilitating a real estate transaction despite knowledge that his client’s deposit into an escrow account was a check drawn on non-existent funds. RULES: an attorney may be CENSURED for facilitating a real estate transaction despite knowledge that a client’s deposit to 3rd parties consisted of a check drawn on non-existent funds Use of worthless check as earnest money = fraud. An attorney is permitted to represent a client who has alreadt engage in illegal or fraudulent conduct. HOWEVER, attorney cannot represent client whom one knows to be engaging in ongoing illegal/fraudulent activity. HOLDING: Ct. holds that attorney had to tell client to NOT do so and then withdraw if client paid without funds. Matter of Tsoutsouris, 748 NE2d 856 (Ind. 2001) SEXUAL RELATIONS WITH CLIENT An attorney was suspended from the practice of law for 30 days for having relationship with client while representing her. He did her once @ divorce case and then again 2 years later. RULES: it is professional misconduct for a lawyer to engage in sexual relations with a current client, unless the relationship commenced before representation. A lawyers ability to effectively assist client MAY be impaired when the lawyer is having sexual relations with his client, professionl judgment may be hindered; objective detachment may be lost; HOLDING: Ct. holds that lawyers have a position of trust, cannot take advantage of client, and especially in criminal or matrimonial cases, the client is very vulnerable. Matter of Jordan Schiff, (NY Committee 1993) RACIST & SEXIST CONDUCT Disciplinary hearing held after Schiff, partner, called opposing counsel, a cunt, asshold, go make babies, (off the record) and cursed frequently on the record. RULES: attorneys who direct dirty, discriminatory, gutter language at OPPOSING counsel to harass counsel on the basis of gender will be subject to sanction for violation of the rules of professional conduct; Committee held that he was corrected once, disregarded penalty on firm, so here the public censure is upheld. Public must know that profession abhors such actions and DOES NOT condone it. HOLDING: - 40 - PROFESSIONAL RESPONSIBILITY – OUTLINE HYPO  Hospital did everything that they could, but the guy was too far gone to be saved  Would this change the attorney’s liability? Would this have made any difference?  Got to show that BUT FOR the attorney’s negligence, the Π/P would have prevailed, and if in fact the ∆/D would have lost no matter what, then it does NOT matter o MUST SHOW PROXIMATE CAUSE    P. 609 A divorce action and there was a dispute about who would get the benefit of increases in value from inherited stock At time divorce happened, it was unclear whether the other spouse wiould get to share of the increase in value of the husband’s inherited stock. Husband gets inheritance o Does wife get value of increase of inherited stock Turns out that wife would NOT receive the value of the inherited stock Attorney does NOT include that in a claim, ½ the value of the increase; o Attorney states that State Supreme Court found that this was NOT community property and that she cannot establish proximate cause On a more likely than NOT basis that Π/P would have prevailed at trial, but if you can show that the Π/P would have gotten more $ from settlement and lost a larger settlement b/c of Attorney’s failure to demonstrate additional assets o Attorney’s screw up in NOT including it has caused them the judgment even if $1K   HYPO  Client has been revived and he is picked up by police  He indicates that he killed Dr.’s wife and confesses  Attorney does NOT move to suppress on ground that their was NO miranda warrant o He is sitting in jail and time for appeal has run out;  SOL has NOT run out on malpractice claim o He sues b/c attorney failed to suppress confession as a violation of his 6th amendment rights  No other evidence against him other than the confession;  What is the policy concern that this is NOT enough? Under traditional notions, this would be enough o Why would we allow him to have trial against attorney? As a policy standpoint,  Policy consideration is CLOGGIN UP THE COURT SYSTEM and court does NOT want to reward criminals by giving them money if they actually did the crime o It is as much their own fault that they are in jail and end up there where they rightfully belong  (A)(1) – not adequately warned and they have to toss out his conviction o Reverse conviction and prove your innocence  He would have to prove that he was innocent of the crime o In the civil case, they could use the confession against him o He would have to show by a preponderance of the evidence that he did NOT do it and that confession was worthless  He might lack sufficient evidence at his disposal o NOT AN EASY HURDLE  HYPO:  Can you have sexual relationship with client?  Are they going to suffer adverse consequences or is this a purely consensual relationship?  Rule 1.8(j), states that attorney cannot have sexual relationship with client unless a consensual sexual relationship existed prior to the commencement of the attorney/client relationship o Someone with a pre-existing relationship, then you can represent that person  In going after duty for breach of fiduciary duty, you can force him to cough up their fee despite NOT showing proximate cause  Attorney took advantage of her by using her file to gain information about her o She can establish damages of emotional distress despite being successful in her case Will Case Hypo  Testator crooks and attorney says that he will get to will later, after Yankee game  Client/Beneficiary is NOT happy b/c he ends up with nothing  Client sues attorney for malpractice  Attorney is NOT client’s attorney and deos NOT owe him anything  The intended beneficiary of the attorney client relationship and even though he was NOT the attorney’s client o The contract was formed to benefit the 3rd party  Under 3rd parties as client equivalents, the Rules allow 3rd party to sue for malpractice as testator beneficiary as client equivalent   HYPO  Client was unhappy with attorney doing bad job of negotiating sale of business  Clients wants $10M in cash, and attorney gets $5M paid out over 10 years in securities o What if Attorney had actually asked for those things  Client should NOT have signed contract  If attorney had asked for $10M and for it all cash?  Client would have had to show o (1) reasonable attorney would have asked for this o (2) a reasonable buyer would have accepted it  Proximate cause: if lawyer had asked for it, the other side would have accepted it o Jury would notice that client agreed to the settlement/sale HYPO: True Story  Farmer Borrower goes to bank and asks if they can loan him $500K  Bank asks for collateral/security  Bank asks for certification letter from Attorney that he owns all farm equipment and there are NO liens, mortgages, etc.  Farmer goes to brother-in-law who is an attorney  Attorney signs a clean napkin certifying that all equipment is owned and takes statement to bank  Money goes down drain and borrower kills himself  Bank is NOT happy; they got nothing  Bank goes to attorney/brother-in-law, Mr. Deep Pockets, b/c equipment was NOT owned completely and there were many liens/mortgages against farm equipment and it was worthless  Bank goes after brother-in-law for that certification  Is attorney subject to civil liability for this certification?  Negligent misrepresentation is enough in MOST jurisdictions HYPO:  When borrower goes to his brother in law, he tells his brother in law the following, that  Trying to figure out whether or NOT he should declare bankruptcy  Trying to figure out assets/liabilities  Attorney brother in law does a careless job of checking and gives statement to borrower brother in law that it looks that he owns the farm equipment free and clear and that he doesn’t think he should declare bankruptcy  Is he now liable to the Bank under these new circumstances?  In case involving the bank, the last gasp argument why attorney should NOT be liable was b/c despite his certification that brother owned farm equipment free and clear, b/c bank should have done its own due diligence b/c they are contributory negligent  J. Posner rejected the argument and said that ordinarily contributory negligence is a defense, but here it would be inefficient for the bank to double-check and redo all work if attorney has done a check of all liens on farm property, so Bank will NOT be forced to re-check his work, which as an officer of the court, he certified that he checked - 41 - PROFESSIONAL RESPONSIBILITY – OUTLINE HYPO p. 652  Law firm tells the other side that the firm has calculated all the estate taxes owing and instructed client to pay them, and it turned out that the firm had miscalculated owing, consequently NOT all taxes that were due were paid, so now the title company is suing the law firm on the ground that there is a deficiency and money is owed to IRS o Is law firm liable in this situation where they calculated amount of taxes owe and the client pays where they have negligently miscalculated?  Was it reasonable foreseeable that the client would rely on their calculation?  They knew that when they are telling this that the client would reasonably rely on their calculations o Similar to Petrillo, farm borrower, b/c they LIABLE B/C law firm/attorney KNEW SOMEONE WOULD RELY ON IT AND THEY COULD REASONABLY FORESEE THAT PEOPLE WOULD RELY ON THEIR WORK HYPO:  Plaintiff’s lawyer in med-mal case goes to hospital lawyer and says that his client has suffered severe injuries as a result of mal-practicing doctors; Asks what is malpractice insurance limit? o Client takes $1M settlement  Turns out that policy limits are NOT $1M but $10M  Is hospital lawyer subject to liability for giving MISINFORMATION to plaintiff’s lawyer about the policy limits on the hospital’s insurance policy o If during discovery, hospital lawyer had a legal obligation to give correct information o Both hospital and plaintiff’s lawyer are liable b/c they have a duty to be candid, honest and perform due diligence   Plaintiff’s lawyer is liable to his client Plaintiff can seek indemnification for hospital lawyer o She may have been NEGLIGENT or dishonest o A lawyer cannot avoid liability for committing fraud or negligent misrepresentation in a situation when oyu can reasonably foresee that someone will rely on your misrepresentation In PI case, lawyers are negotiating Defendant’s lawyer is concerned that plaintiff will be a damaging witness for the defense b/c she is in horrible shape (scarred, burned, etc.) o Plaintiff prepares to go to trial o Defendant lawyer agrees to settle o It turns out that at the time the plaintiff’s lawyer was conducting negotiations, his client had died Can settlement be set aside, and is the attorney subject to civil liability for failing to disclose that his client had died? o When victim dies, it does NOT necessarily mean that the attorney is representing the estate o When victim dies, attorney does NOT have a client Is this an affirmative misrepresentation? After client dies? Attorney’s are liable for concealing that their client has died, and they NO LONGER HAVE A CLIENT Settlement would be overturned and attorney could be subject to civil liability as well as discipline HYPO:  Middle eastern couple; wife doesn’t want husband to take kids out of the country  Husband’s lawyer agrees to hold passports of 2 kids until they turn 18 so they are unable to leave the country o Agreed by Lawyer and Husband and by Wife o Husband requests his kids passports o Lawyer says that there is an agreement  Husband says that he is paying lawyer so he wants the passports o Husband takes kids to Timbuktu in Mid-East and she is very unhappy  Wife sues the husband’s lawyer  Can lawyer claim that he owes wife NO DUTY AT ALL? o Essentially this resembles an escrow agreement o Enforceable escrow agreement  Lawyer has breached escrow agreement and he is liable for damages for breach of escrow agreement HYPO:  Plaintiff is politically connected to politicians adversary in a heated congressional race  Fender bender – and politician offers to buy a new car from plaintiff  Plaintiff files lawsuit and does some discovery  Lawyer gets deposition from politician  Lawyer is simply doing what client tells him; client wants to know what happened in college?  Is attorney liable in this situation  Misuse of process where attorney would be subject to civil liability HOW TO STUDY FOR FINAL EXAMPLE  Read model rules & comments  Provisions of code of judicial conduct  Do NOT NEED TO KNOW RULES BY # or Case Names  Attorney is subject to discipline for X, or NOT subject b/c of Y  Apply rules  Study holdings of principal /BIG cases o Variation on cases that we studied – they will be similar  If you have time, take practice exams o CALI – buy them online – library has these exams o MPRE sources for exams o Supreme Bar Review o Ron Rotunda - Black Letter Series – Published by West  Questions are based SOLELY on what we studied in this class  There are 43 questions  Score is based on number right, but there is NO PENALTY FOR GUESSING       - 42 - PROFESSIONAL RESPONSIBILITY – OUTLINE ATTORNEY MALPRACTICE  Attorneys can be civilly liable if there is o Duty  Typically, an attorney agrees to represent a client, there is a duty  Even in circumstances, where attorney does NOT subjectively intend to represent client, and he causes client to reasonably believe that he is representing her, then here is a potential malpractice liability  SEND NON-RETAINER LETTER – no representation b/c of … o Breach  Expert witness to establish standard of care  Typical standard of care: For ordinary prudent attorney for that STATE  If attorney holds himself as some sort of expert, he will have to live up to standard of expert  Proving breach of duty  Showing that typical attorney would have to do A, B, and C and attorney in this case failed to do A or B, so he has NOT lived up to his duty of care  Also saw that you can try to introduce evidence through expert testimony that attorney violated the ethics rule o Conflict of interest, violated R. 1.7, - evidence of breach BUT NOT CONCLUSIVE o Proximate case  Typical proof proximate case:  But for attorney’s negligence, client, more likely than not, would have prevailed in underlying law suit  Alternative means of proving proximate case:  Client/plaintiff would have more likely than not would have gotten a more favorable settlement due to the attorney’s negligence  Proximate cause applies to transactional work  Veiner case  b/c of attorney’s negligence, client failed to get some sort of favorable deal, but plaintiff had to show that if the attorney hadn’t been negligence the other side would have agreed to client’s/plaintiff’s crazy demands  In criminal context:  (1) Peeler requires Criminal would have to get conviction reversed & (2) based on cases after Peeler, have to show actual innocence in most jurisdictions  Do NOT want criminal profiting just b/c they end up in jail o Public defender’s would be deterred from being public defenders o HARDER TO MEET CRIMINAL MALPRACTICE PROXIMATE CAUSE STANDARD  3rd party beneficiary theory  can show that they are client equivalents  Plaintiff stands in shoes of testator and can bring action for malpractice  No conflict btw attorney doing will for testator and getting benefits to 3rd party b/c these interests are aligned  NOT allowed where the interests are different o Damages - 43 - PROFESSIONAL RESPONSIBILITY – OUTLINE DISCIPLINARY PROCESS IN NJ  (1) Most disciplinary proceedings begin with a complaint o Someone files a complaint against an attorney o Under Himmel, or a judge can file a complaint, another jurisdiction that disciplined the attorney  (2) An attorney who is designated a secretary on the initial review of the allegations as stated would have violated the rule and merits disciplinary complaints o Many complaints get tossed b/c they are NOT a violation of the rules  (3) Committee sends matter to attorney and requests response to complaint within 10 days o Without response, they will likely get suspended for lack of cooperation o If he fails to cooperate further, then it will be deemed admitted and he will be disbarred o Grievant, under the NJ rules, gets an opportunity to see attorney’s response to complaint and he or she gets 14 days to reply to attorney’s response  (4) Determination as to whether infraction is minor or major one o A minor infraction may result in a diversion  An agreement btw committee and attorney, then he can get a public admonition  If the attorney does NOT accept it, then it will go to hearing  If minor infraction, hearing will go before one arbiter o Major infractions tend to be the norm b/c minor ones get settled  3 person board who consist of 2 attorneys and one layman  Discovery available to disciplinary authorities and attorney o Proof required is clear and convincing evidence to nail the attorney o Secretary may only proceed with cases that he believes he will be able to prove his case by clear and convincing evidence  (5) An appeal available to the board of review o Automatic right of review to BAORD OF REVIEW o Ultimately, review by the state supreme court is possible  State supreme court hears all disbarment cases  If NOT a disbarment case, then it is discretionary to get to supreme court COMMON DISCIPLINARY ACTIONS 1. failing to communicate with the client a. failing to return phone calls i. bad attorneys who continue to call with their calls do NOT get sent to review board ii. good attorneys who fail to call will be sent to review board iii. paralegal will NOT get disciplined or sued, but attorney has obligation to supervise his or her paralegal 1. instruct them to return their phone calls 2. neglect of client’s case  Disciplinary committee will NOT go after an attorney for messing up one case b/c it is a civil matter o If he fails to file within SOL for 10 cases then they will go after their license o Many times, committee is dealing with substance abuse attorneys  They may get put into rehab and NOT lose their license Possible Disciplinary Actions  Sanctions o Public admonition, no private admonition  Suspension o Must notify clients that you cannot take there cases b/c you have been suspended  Lengthy suspension  Disbarrment SERIOUS – MAY GET YOU DISBARRED  Rule 1.15 - commingling  Do NOT COMMINGLE CLIENT’S PROPERTY  If client gives you money or you get settlement money and spend it, you will be disbarred  Cannot mix client’s money with your own o Keep them in different bank accounts o Might NOT be disbarred; they may only suspend you  Separate Client Trust Acct o Only keep client’s money in there  Interests bearing account o Varies from state to state o In Some states, interests go to state to pay clients where attorneys have absconded with client’s money  Must be documented  Pay client promptly from that trust fund account  Get everyone to sign off on settlement  Pay money out of account  CANNOT run it through your own personal account in order to cash it and pay the client  You have commingled; even if it is for the purposes of cashing it - 44 - PROFESSIONAL RESPONSIBILITY – OUTLINE       Write check against client trust fund account Concern is with client’s having their money stolen by attorneys, then they take rules about record keeping and trust fund accounts very seriously Attorneys may get into trouble for: Conflicts of interest If you do get sued and get reported to disciplinary authorities, then get counsel o Don’t represent yourself Have malpractice insurance o Report to malpractice insurance carrier o ALWAYS HAVE MALPRACTICE INSURANCE Take every complaint against you seriously o You could be subject to civil liability o Be subject to disciplinary committee CIVIL LIABILITY BY ATTORNEY TO 3rd PARTY  Client equivalents o Beneficiary of will where lawyer does NOT draft will which was intended to benefit that person o 3rd person can bring action against attorney as 3rd party beneficiary  If 3rd party is NOT client equivalent, i.e., in Petrillo o Attorney put together first page of 2 percolation reports, and was @ minimum negligent, and misleading to ultimate buyer of property and LAWYER KNEW THAT THIS WOULD BE RELIED UPON BY ULTIMATE BUYER  Similarly, to Grey Cast Case o Lawyer certified that his brother had full title to farm inventory @ a time when he knew that document would be presented to bank for brother-in-law to get a loan  If lawyer had NO idea what document was going to be used for, then he would NOT be held liable  If lawyer lies about how much insurance coverage a client has or misleads about that information o Civilly liable for damages of other party in settling the matter  Continuing to represent a client who you know that you do NOT have b/c client died, then that in itself is misleading o Lawyer does NOT have to say anything; he can file motions or continue negotiations o Lawyer/client relationship ends when client dies  Lawyers can be civilly liable if they abuse process o Using process apart from or wholly apart from civil justice system, just like anyone else  Lawyers who agree to act as escrow agent and breach that agreement then they are liable for that Disciplinary process in NJ  Proof by clear and convincing evidence  Secretary must screen out charges that are NOT disciplinary violations and passing that they must make a determination as to whether a violation is MAJOR OR MINOR o If minor, it can be settled out by the attorney with a public reprimand o If attorney does NOT want that, then there is a hearing before 1 attorney  Major infraction has hearing before 3 person, 2 lawyers and one layman  Discovery is same as civil discovery  Lawyer is afforded due process  Complainant has 14 days to respond /reply to respondent/attorney’s brief/statement  Review process to appellate review board  Disbarment cases are ALWAYS heard by supreme court o Other cases, then Supreme Court may hear decisions from appellate review is discretionary Reasons for Discipline  Failing to communicate  Failing to segregate attorney $ from client $ o Violation of R. 1.15 – commingling of funds - 45 - PROFESSIONAL RESPONSIBILITY – OUTLINE Ohralik v. OH state Bar Association, 436 US 447 (1978) DEFINING BORDERS Ohralik solicited two young women who had been in car accident by visiting one while she as in traction in the hospital. RULES: a state may constitutionally discipline a lawyer for soliciting clients in person, for pecuniary gain, under circumstances likely to pose dangers that the state has a right to prevent. Ct. held that PROPHYLACTIC rule prohibiting solicitation serves sufficient state interest to pass 1st amendment scrutiny. While, 1st amendment protects attorney’s commercial speech, in this case, the state has a strong interest in preventing the perceived harms of attorney solicitation (assertion of fraudulent claims, debasement of legal profession, potential harm by overreaching, overcharging, under representation, and misrepresentation). FACE TO FACE creates presumption of STRONG COERCION esp. where client is vulnerable. HOLDING: Zauderer v. Office of Disciplinary Counsel, 471 US 626 (1985) TARGETED ADVERTISEMENTS Attorney places advertistment targeting women clients who used Dakon Shield. Informs them about cause of action for miscarriage due to Dalkon Shield Interuterin. Ad had a picture. ISSUES: Does a state have a legitimate interest regulating advertising advising consumers of possible causes of action for miscarriages RULES: a state may NOT prohibit legal service advertisements targeting a particular segment of the public Constitution provides for a right to redress. Cannot Bar Attorneys Form Telling People about Their Legitimate Rights Bad taste is INSUFFICIENT to bar an ad, but intentionally misleading is sufficient to bar an ad HOLDING: Ct. held that it is misleading to say all costs are waived, but in reality NOT all fees are waived. Supreme Court said that it could NOT bar ad simply b/c it was mistasteful, but only if it was intentionally misleading. Bad taste is NOT sufficient. Some states have been more involved in regulating TV commercials, including NJ. NOTE: Where Fees are contingent on outcome then you do NOT have to pay for attorney, but you do pay for court costs, deposition transcripts, filing fees, and client can be on the hook if attorney does NOT waive them. What would be the impact if the state required disclaimer that takes 3 pages of newspaper pages? It would be too burdensome, and expensive and all attorneys are priced out of market as a means to combat this possibly misleading situation. Further, No legitimate reason for requiring it and it would be a back door way to basically ban all attorney advertisement Shapero v. KY Bar Assn., 471 US 626 (1985) TARGETED MAIL KY bar association promulgated disciplinary rule prohibiting mailing of ads for particular legal services. Shapero applied for approval of ad. Ads were to be sent to those individual, who according to public records, were facing imminent foreclosure. RULES: a state may NOT prohibit the mailing of advertisements to a target audience believed to be in need of particular legal services. Ct. found that targeted mailing is permissible and cannot be prohibited. Ct. holds that while outright solicitation is prohibited, a targeted advertisement may be permitted if it is NOT misleading, false and discloses all or most information necessary to allow potential client to make up his mind as to whether or NOT choose the attorney. HOLDING: In Re Primus, 486 US 466 (1988) SOLICITATION BY PUBLIC INTEREST AND CLASS ACTION LAWYERS SC reprimanded attorney for forwarding letter to individual advising her of certain rights and of opportunity to receive free legal services. Primus and ACLU sent letter to Williams who had been sterilized by state regulator practice conditioning welfare entitlement to sterilization. RULES: a state may NOT prohibit attorneys from mailing letters to potential clients advising them of their legal rights and of the opportunity to receive free legal services. Supreme Ct. rejected SC public reprimand b/c here the court found that attorney’s solicitation was politically motivated and as such protected by the 1st and 14th amendments. State abridgements must be narrowly tailored to serve compelling interests. Here Primus was clearly making political statement with ACLU; HOLDING: - 46 - PROFESSIONAL RESPONSIBILITY – OUTLINE ATTORNEY’S ADVERTISING AND COMMUNICATION Could a state decide to bar all attorney advertising? Or would they run into a problem?  NO b/c individuals have protection b/c they have o 14th amendment incorporates right to freedom of speech (not political), but talking about commercial speech, which is entitled to protection but NOT as much protection as political speech  Ads give consumers information about whether they have a claim and information about attorneys that they might NOT have known to give them a choice about attorneys available to them  Ads increase price competition thereby driving down the cost o Ads do the most good in terms of decreasing price competition in the most routine legal services (simple wills, uncontested divorces)(NOT WHERE quality is important but where a paralegal can do it, NOT super complicated – price competition will work here b/c many firms can do it) In what circumstances can the state legitimately regulate the ads?  I.E., ad said that guy is called the King of Torts. o Rule 7.1 – general rule concerning lawyer advertising (p. 115-116) o Rule 7.2 – deals just with advertising (p. 116)  It is a qualitative assessment of his services, and someone might reasonably consider him to be the BEST tort attorney Rule 7.1 - Communications Concerning A Lawyer's Services A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading. COMMENT 2: states that advertisement may be misleading where there is a substantial likelihood that it will lead a reasonable person to formulate a specific conclusion about the lawyer or the lawyers services for which there is NO reasonable factual foundation o COMMENT 3: Even truthful reports about lawyer’s achievement can be misleading if it would cause people to have an unjustified expectation that they would have similar results If you put past accomplishments, $10M, then you can put a disclaimer that o “Results NOT TYPICAL and that past results not indicative of future results” o Careful how you trumpet your successes o Do NOT PUT DOWN STATEMENTS OF YOUR QUALITY WHERE YOU CANNOT BACK IT UP State regulates for truthfulness o   Rule 7.2 - Information About Legal Services (a) Subject to the requirements of Rules 7.1 and 7.3, a lawyer may advertise services through written, recorded or electronic communication, including public media. (b) A lawyer shall not give anything of value to a person for recommending the lawyer's services except that a lawyer may (1) pay the reasonable costs of advertisements or communications permitted by this Rule; (2) pay the usual charges of a legal service plan or a not-for-profit or qualified lawyer referral service. A qualified lawyer referral service is a lawyer referral service that has been approved by an appropriate regulatory authority; (3) pay for a law practice in accordance with Rule 1.17; and (4) refer clients to another lawyer or a nonlawyer professional pursuant to an agreement not otherwise prohibited under these Rules that provides for the other person to refer clients or customers to the lawyer, if (i) the reciprocal referral agreement is not exclusive, and (ii) the client is informed of the existence and nature of the agreement. (c) Any communication made pursuant to this rule shall include the name and office address of at least one lawyer or law firm responsible for its content. - 47 - PROFESSIONAL RESPONSIBILITY – OUTLINE ATTORNEY SOLICITATION The Verdict (Movie)  Paul newman is personal injury, alcoholic, ambulance chasing attorney  He paid funeral director, and presented himself as friend of family and gave card to bereaved family member  He lies and said that he knew the person  He paid the funeral director to introduce him Rule 7.3 Direct Contact With Prospective Clients - Information About Legal Services (a) A lawyer shall not by in-person, live telephone or real-time electronic contact solicit professional employment from a prospective client when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain, unless the person contacted: (1) is a lawyer; or (2) has a family, close personal, or prior professional relationship with the lawyer. (b) A lawyer shall not solicit professional employment from a prospective client by written, recorded or electronic communication or by in-person, telephone or real-time electronic contact even when not otherwise prohibited by paragraph (a), if: (1) the prospective client has made known to the lawyer a desire not to be solicited by the lawyer; or (2) the solicitation involves coercion, duress or harassment. (c) Every written, recorded or electronic communication from a lawyer soliciting professional employment from a prospective client known to be in need of legal services in a particular matter shall include the words "Advertising Material" on the outside envelope, if any, and at the beginning and ending of any recorded or electronic communication, unless the recipient of the communication is a person specified in paragraphs (a)(1) or (a)(2). (d) Notwithstanding the prohibitions in paragraph (a), a lawyer may participate with a prepaid or group legal service plan operated by an organization not owned or directed by the lawyer that uses in-person or telephone contact to solicit memberships or subscriptions for the plan from persons who are not known to need legal services in a particular matter covered by the plan.  R. 7.3 says that if for personal gain you cannot do live in person solicitation o As in Shapiro, targeted mailing can be done b/c they do NOT involve coercion and invasion of privacy HYPO:  Lawyer plays golf with big executive and says that he can do estate plan for him, and to give a call on his card  Can lawyer get away with this kind of solicitation? On golf course with sophisticated business executive? o If this is the first meeting? NO, b/c exception requires prior professional relationship  Rule is concerned with lawyer’s motivation is for pecuniary gain; if he does it for free, then he is in trouble What Constitutes Solicitation?  Lawyer gives a talk about estate planning and someone comes up to lawyer and asks if he agree to plan his estate? Is this solicitation? No, b/c client approaches client..  Under 7.3, there are some exceptions (family, close personal or prior professional relationship, person contacted is a lawyer)  In solicitation context, they are all no good when compared to ads b/c ads are permissible  Blanket prophylactic rule  Difficulty in degree of administration b/c Administrators would HAVE lots of trouble with proof of troublesome solicitation; who said what to whom? o In administering newspaper ads, there would be the actual media available  R. 7.3 states that if it is for money, no prior professional relationship or family, then you cannot solicit attorney services   In a Edenfield v. Fane, 507 US 761, the Supreme Court held that if an accountant does it, then it is NOT a problem. Lawyers are held to a higher standard. In persons solicitation is absolutely barred except if pro bono, prior professional relationship or personal relationship, Lawyers cannot do it and will be subject to discipline Paul Newman paying the funeral director  Rule 8.4(a) – you cannot get someone help you to violate the rules o Lawyer cannot give someone anything of value;  Rule 7.2 (b) – A lawyer shall not give anything of value to a person for recommending the lawyer's services except that a lawyer may Rule 8.4 Misconduct - Maintaining The Integrity Of The Profession It is professional misconduct for a lawyer to: (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; (b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects; (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; (d) engage in conduct that is prejudicial to the administration of justice; (e) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law; or (f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law. HYPO:  Attorney gives auto-mechanic $500 for list of all clients; o He is NOT paying mechanic to be recommended - 48 - PROFESSIONAL RESPONSIBILITY – OUTLINE    o Mechanic is free to do what he wants with his list o There is NO rule preventing buying client list Attorney sends out letter to these clients, stating that attorney has been informed that you were involved in an auto accident and that I am a personal injury lawyer, please call or write, here is my contact information o Outside envelope must SAY ADVERTISING MATERIAL b/c people may not want to read junk mail  R. 7.3(c) is the ABA rule and NOT the state rule,  Virtually all states require it, so NJ attorneys should do this Attorney put ADVERTISING MATERIAL ON OUTSIDE ENVELOPE and ON LETTER o Then he is okay Attorney who is mistaken and client is NOT in auto accident and lawyer is wrong, then lawyer is in trouble o Rule 7.1 makes NO EXCEPTIONS FOR GOOD FAITH MISTAKE in FALSE STATEMENTS, such that “you have been In auto accident,” is false. o Reword advertising by stating that potential client MAY HAVE BEEN IN AUTOACCIDENT; or IF YOU HAVE BEEN IN ACCIDENT Targeted mailing, cannot use coercion and cannot send if they ask you NOT to do so o Truthful material, NOT falsely misleading, state that it is advertising Emails are okay, subject line states “advertising material”, NOT coercive, not misleading o Instant messages are prohibited under R. 7.3(a) – NO REAL TIME COMMUNICATIONS  (text messages would also be prohibited)    Florida Bar v. Went for it, 515 US 618 (1995) p. 825  FL bar Bans targeted mailings within 30 days of an accident are barred  Supreme Ct. found that this was NOT violating rule and allows for notifying of attorney by advertising after 30 days  Attorney cannot contact send targeted mailings before 30 days o Does it create unequal playing field b/c Insurance lawyers can contact within 30 days and offer a settlement o Some people who are unrepresented settling cases NOTE: in case of airline crashes, neither side can send targeted mailings within 30 days HYPO:  What about you cannot send targeted mailings within 30 days of someone’s arrest? o Arrest means that you usually get the next court date available o Criminal defendant may waive many rights Rule 7.4 Communication of Fields of Practice and Specialization - Information About Legal Services (a) A lawyer may communicate the fact that the lawyer does or does not practice in particular fields of law. (b) A lawyer admitted to engage in patent practice before the United States Patent and Trademark Office may use the designation "Patent Attorney" or a substantially similar designation. (c) A lawyer engaged in Admiralty practice may use the designation "Admiralty," "Proctor in Admiralty" or a substantially similar designation. (d) A lawyer shall not state or imply that a lawyer is certified as a specialist in a particular field of law, unless: (1) the lawyer has been certified as a specialist by an organization that has been approved by an appropriate state authority or that has been accredited by the American Bar Association; and (2) the name of the certifying organization is clearly identified in the communication.  R. 7.4(d)(1) – you can only say that your practice is limited to PI and you concentrate in PI and if you say you are specialist, you must comply with 7.4(d) and be certified as a specialist. o IL barred everyone b/c there was no state equivalent for federal certification of being trial lawyers o Supreme Court held that IL cannot bar everyone from saying that they are certified Rule 7.1 – falsely misleading advertisements will always be barred o Getting flimsy certification that only requires $100 would be falsely misleading on Advertising b/c someone would expect some sort of test, or regulation  - 49 - PROFESSIONAL RESPONSIBILITY – OUTLINE MISTATEMENTS FROM PROSECUTOR HYPO  Prosecutor says that These guys must be guilty b/c they retained counsel and refused to talk to him  He also didn’t disclose DNA evidence and misled people  Defense attorney can bring prosecutor up for misconduct  Change venue  Vigorous voir dire to ensure that jurors have NOT been contaminated  Defense attorney can speak to minimize recently public statement but only necessary to mitigate the statement o Lawyer CANnot give a script to say o Lawyer can advise client of what to say to public o 8.4(a) – cannot get client to do indirectly what lawyer is prohibited from doing directly o State that everything must be proven @ court, prosecutor has NOT proved his case Rule 3.6 Trial Publicity - Advocate (a) A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter. (b) Notwithstanding paragraph (a), a lawyer may state: (1) the claim, offense or defense involved and, except when prohibited by law, the identity of the persons involved; (2) information contained in a public record; (3) that an investigation of a matter is in progress; (4) the scheduling or result of any step in litigation; (5) a request for assistance in obtaining evidence and information necessary thereto; (6) a warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or to the public interest; and (7) in a criminal case, in addition to subparagraphs (1) through (6): (i) the identity, residence, occupation and family status of the accused; (ii) if the accused has not been apprehended, information necessary to aid in apprehension of that person; (iii) the fact, time and place of arrest; and (iv) the identity of investigating and arresting officers or agencies and the length of the investigation. (c) Notwithstanding paragraph (a), a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer's client. A statement made pursuant to this paragraph shall be limited to such information as is necessary to mitigate the recent adverse publicity. (d) No lawyer associated in a firm or government agency with a lawyer subject to paragraph (a) shall make a statement prohibited by paragraph (a).  Rule 3.8 Special Responsibilities Of A Prosecutor - Advocate The prosecutor in a criminal case shall: (a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause; (b) make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel; (c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing; (d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal; (e) not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client unless the prosecutor reasonably believes: (1) the information sought is not protected from disclosure by any applicable privilege; (2) the evidence sought is essential to the successful completion of an ongoing investigation or prosecution; and (3) there is no other feasible alternative to obtain the information; (f) except for statements that are necessary to inform the public of the nature and extent of the prosecutor's action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule. - 50 - PROFESSIONAL RESPONSIBILITY – OUTLINE ATTORNEY ADVERTISING  Supreme court said states cannot bar all lawyer ads o 1st amendment rights to commercial speech o Informs potential clients of rights and lawyer services  However, can bar false ads o Ad advising people of SOL and potential claims o Potentially misleading where it states that NO fees are charged but will charge costs and need disclaimer for difference of costs and fees o Lawyers can be disciplined for putting out falsely misleading advertisements In person solicitation o Invasion of privacy o Greater danger that attorney will over bear will of potential client and force onto client where client does NOT want it  Paul newman  Aola case where lawyer was visiting people who were hospitalized o BLANKET BAN ON IN PERSON SOLICITATION  UNLESS  Family relationship  Close relationship  Prior professional relationship  NOT FOR PROFIT o Rule 7.3 Paying someone to contact/recommend services is prohibited o 7.3 (b) Targeted mailings o Not like in person solicitation b/c NO PRESSURE AND can throw away o Outside envelope has to be labeled as ADVERTISING o Emails are permissible but you have to have SUBJECT stating ADVERTISEMENT so that people can simply delete o HOWEVER, emails are NOT instant messages – real time communication – and prohibited under R. 7.3 FL bar v. Went For It, in context of civil case, Florida could say that for 30 days following an accident you cannot send out targeted mailigns o Protects people’s privacy interest o Supreme Court held that it does NOT bar other forms of advertising and you can do targeted mailings after 30 days CRIMINAL CONTEXT o A similar bar for 30 days in criminal context would NOT stand up b/c someone’s rights might be jeopardized in 30 days Certification or specialization cannot be claimed without appropriate credentials by ABA o You can state that you concentrate in a certain practice o Rule 7.4 R. 3.6 & R. 3.8 o Prevent attorneys from trying court in public o Substantial likelihood of prejudicing jury pool o Defense counsel can respond to the extent necessary by making statements to the press to rebut the prejudicial statements        - 51 - PROFESSIONAL RESPONSIBILITY – OUTLINE JUDICIAL DISQUALIFICATION Liljeberg v. Health Services Acquisition Corp, 486 US 847 (1988) ETHICAL AND STATUTORY DISQUALIFICATION A judge discovered, after rendering verdict which had become final, that he had a personal interest in litigation. Judge is on board of trustees of Loyola. Case before him determines which two parties will get certificate of need. Neither party is Loyola. If one gets it, then it would benefit a deal for loyal regarding the sale of some property. Judge did NOT recuse himself. Judge claims that he did NOT remember about the fact that Loyola really wanted one of these parties to win so they can do this deal which would benefit them. Ultimately, Loyola prevails. After learning of judge’s interest, other side says that he should have disqualified himself; they say that decision should be reversed. RULES: a judge, upon discovering a person interest in litigation, MUST recuse himself any time before final entry of judgment. 28 USC 455(b)(4) says that judge should disqualify himself where he knows that he individually, spouse or child, has financial interest in matter or ANY OTHER INTEREST THAT COULD BE SUBSTANTIALLY RELATED TO THE OUTCOME. § 455(c) Judge was a fiduciary of Loyola and it looks bad b/c he should be informed of his interests HOLDING: Court says that judge lacked appearance of impartiality. Here judge claims that He allegedly did NOT know of his interests; the MAJ took him at his word that he did NOT remember. Unlike the case where judge had a personal financial interest, the judge did NOT stand to benefit one way or the other by this appearance; NO PERSONAL BENEFIT. Decision predicate on subsection A b/c of the appearance of NO IMPARTIALITY NOTE: § 455(a) does NOT require knowledge. HOWEVER, If you do NOT read a knowledge component into 455(a) then it subsumes 455(c) because it would make the other one superfluous; 455(c) is NOW worthless. Statutory construction RULES require that you do NOT read (a) as NOT requiring knowledge b/c (b)(4) would always be meaningless b/c everyone would rely on (a) and (b)(4) would never kick in. NO B/C § 455(b)(4) states that any financial interest, even small one, is sufficient. HYPO  A party to case is GM. Judge owns one share of GM stock. Party seeks to disqualify judge on basis of his financial interest.  Under § 455(a) would NOT be sufficient to disqualify BECAUSE 1 share is NOT SUBSTANTIAL INTEREST. HOWEVER, Under § 455(b)(4), the judge is disqualified b/c in situations like this b/c he has a financial interest in a party and financial interest is defined as however small.    NOTE: Canon 3E and § 455 are ESSENTIALLY DIFFERENT as to the threshold interest for disqualification o Under Canon III.E, the judge’s interest must be more than de minimis, even though he would be disqualified under § 455 § 455(f) - If judge as devoted substantial time, then under § 455(f), he can unload the stock and he can get out of the mess o This was a response to judges having to start whole case over again years later when they owned one share of stock Judge can get a waiver or remittal and be allowed to proceed o § 455(e) allows parties, after a full disclosure on the record, the parties can waive a disqualified for the judge, BUT ONLY FOR § 455(a) section of appearance issues  Only time they are waivable COMPARE, with ABA Model Code of Judicial Condcut Canon III.F on p. 525 o On record o Parties agree to it o Can waive anything EXCEPT o Personal bias or prejudice cannot be waived  NOTE: § 455(e) is limited in allowing waivers for appearance issues Ct. held that judge SHOULD HAVE KNOWN o Judges are supposed to keep track of extrajudicial activities o § 455 says that (c) he is supposed to inform himself, should’ve known, and report to his superiors of his extra judicial conduct § 455(d)(4) – definition of financial interest o Ownership in mutual fund is NOT a financial interest unless judge manages mutual fund Look @ the definitions section and TURNS what means what     HYPO  VP Cheney gets ticket for him to go hunting with Scalia to come down with him  J. Scalia goes hunting for a week, on airforce one and pay coach fare  J. Scalia reimbursed gov’t for coach ticket down there  Motion made to disqualify J. Scalia from hearing case  VP Cheney must disclose docs who appeared before him when he was shaping energy policy  § 455 does NOT apply to US Supreme Court judges  J. Scalia decided that he was NOT going to disqualify himself  BUT If § 455 had applied should he have disqualified himself?  Should judge disqualify himself where he has an after one work drink with attorney? o Case was already in progress  Is a reasonable person have a doubt as to propriety? - 52 - PROFESSIONAL RESPONSIBILITY – OUTLINE In Re Marriage of Iverson, 11 Cal. App. 4th 1495 (1992) JUDICIAL AND COURTROOM BIAS In trial jduge’s opinion, accompanying property decree, the judge cited stereotypical notions as to how he arrived at his decision. Wife challenges prenuptial. Husband says that she was fully informed. Judge calls wife gold-digger and says she is a trophy wife. RULES: a judicial ruling CANNOT be based on stereotypical notions of gender Judge’s are under a duty to avoid conflict of interest and appearance of conflicts of interest. HOLDING: Ct. holds that judicial ruling must BE FAIR AND APPEAR to BE FAIR. Acts or words by judge which show his ruling based on group NOTIONS not individualized facts, do NOT meet this basic fairness standard for justice. Ct. holds that stereotyping cannot be condoned in judicial ruling. Matte of Bourisseau, 480 NW2d 270 (Mich. 1992) JUDICIAL AND COURTROOM BIAS After Judge Bourisseau made remarks which were widely disseminated in the news media and were criticized as insensitive and racist, the judicial bar recommended that he be disciplined. During newspaper interview, Judge said that he would permit abortion where rape was interracial despite parental act. RULES: public remarks made by judge which are racially offensive and improper constitute misconduct in office A judge is forbidden, in performance of his duties, to manifest bias or prejudice by words or conduct or to permit staff, court officials and others subject to the judge’s direction and control to do so. In addition, § 2(C) of the 1990 code states that a judge shall NOT hold membership in any organization that practices invidious discrimination on the basis of race, sex, religion or natural origin. HOLDING: Ct. held that public remarks that are offensive call into question IMPARTIALITY of the judiciary and expose judicial system to contempt and ridicule. Such erosion of public confidence in the judiciary is clearly prejudicial to the administration of justice. - 53 - PROFESSIONAL RESPONSIBILITY – OUTLINE HYPO Judge has gotten rear ended in back injury. Judge has PI action pending and he is claiming pain and suffering. @ same time (1) there is an action that has been brought to determine the constitutionality on the cap of pain and suffering; AND (2) Same Judge is hearing that case. Judge now has a financial interest in the case; he should recuse himself Canon 3E (p. 523-525) – STATE COURT JDUGES  ABA Code Of Judicial Condcut has been adopted by almost every state as model rules  Canon 3E is basis upon which state court judges get themselves disqualified 28 USC 455 - FEDERAL JUDGES  Rules that allows them to be Disqualified HYPO  Attorney claims that judge had said negative things about him during the course of the proceeding and claimed that judge did NOT like him and should be disqualified  Judge kept referring to attorney who was a professor as professor and did so in a sneering fashion o Is this sufficient for disqualification?  Canon III.E(1)(a) says that judge should disqualify himself where the judge has PERSONAL BASIS OR PREJUDICAE CONCERNING A PARTY OR A PARTY’S LAWYER o Requires a lot of evidence o Case law requires that attorney has thick skin o Must be really bad  E(1) deals with appearance of impartiality HYPO:  Dealing where judge gets the information  Involves cigarette industry  Motion made to require that cigarette industry, the defendant, produce some documents and some other ifnromation  (D) cigarette company said that information was protected by attorney client privilege  (P) said that there is an exception to ACP of the CRIME FRAUD EXCEPTION o They argued that cigarettes were perpetrating a fraud  Judge has to rule on whether (D) has to produce these documents  Judge in ruling says that “who are these companies, who do NOT care about public, and only care of the bottom line,” despite some contenders, “the cigarette companies are KING OF CONCEALMENT OF DISINFORMATIONthe MOST EVIL who lie to public”    Crime fraud exception applies, and (d) is ordered to produce these documents (D) argues that judge should be disqualified (P) argues that it cannot be basis for disqualification b/c it was a bias developed while he was hearing the case o THIS WENT UP TO THE 3rd CIRCUIT Judge could have avoided DISQULAIFICTION by simply making a ruling 3rd Cir. said that he should have kept his mouth shut o He indicated that he could NOT be impartial WHETHER OR NOT JDUGE OBTAINED THE INFORMAITON INTERNAL OR EXTERNAL IS NOT DISPOSITIVE, but whether he would appeal to lack impartiality HYPO What if client knows that judge has a daughter at this firm and do NOT like this judge b/c judge has been negative in their industry so they purposefully retain this law firm in order to get this judge disqualified  In these cases, the lawyer himself is disqualified  Law firm or client is trying to manipulate the rules to get judge disqualified  Law firm would be disqualified if they purposefully did it to disqualify the judge HYPO Judge hears a case at the time he is negotiating with a law firm? Judge is negotiating a job with the law firm. Judge has a financial interest in trying to get more $ in his pocket from job offer  § 455 problem for judge. Rule 1.12 problem of negotiation for employment at the same time HYPO Where law clerk is negotiating? At the same time that judge is making a ruling?  Is clerk influencing judge ? doesn’t matter;  Looks that way and that is the problem under § 455 (a) and Canon III  Book suggests that where clerk has NOT worked on the opinion/case, then judge is okay HYPO 1 Judge offers to call partner at firm to reference law clerk and recommend him  Comments to Canon II.B p. 516-17  Judge should be sensitive to abuse of prestige of office, a judge may, based on the judge’s personal knowledge, serve as reference or provide a letter of recommendation.  If doing it just b/c law clerk has done a good job? Then its okay, but here it is a quid pro quo b/c judge lends prestige of his office to get him to do something for him    J. Rifkin is trying to get Joe to do something for Denise; he pays to help her Judge uses the prestige of his office to benefit her or him by avoiding blackmail Canon III.C – judge was supposed to discharge his administrative responsibilities. Interfere with court duty, then judge might be abusing his administrative responsibilities IL supreme court justice who was picked up for speeding Cop asks if judge knows that he was speeding Judge asked whether or NOT cop knew he was justice Judge was nailed for abusing prestige of office to get out of ticket        HYPO 2  Judge gets a table at a restaurant despite being turned down without any reservations  Friend identifies him as a judge and gets a good table at a top restaurant? o Canon II.B – judge should not let prestige of judicial office to advance private interests  NOR SHOULD THE JUDGE ALLOW OTHERS CONVEY THAT THEY ARE in position to influence judge  Uses position to get special treatment HYPO 3  Attorneys wants that judge cosign loan for him  Attorney asks for him to loan him some money  Judge says that he will appoint him as guardian ad litem so that guy can make some extra money o They will be uncontested and can learn about it as he goes  Under Canon II.A, it would have appearance of impropriety  Under Canon II, there is a blanket prohibition against the appearance of impropriety  II.B - Judge shall NOT allow social or other relationships to influence his judicial conducts o Social relationship influences his conduct  Under canon III.C(4) – judge shall NOT make unnecessary appointments, and they should be based on merit, not his friend HYPO Judge has daughter. Daughter works for law firm as partner. Law firm works for client who is party in PI case? Can judge sit on the case?  Judge may have to disqualify himself b/c daughters firm stands to benefit  The ABA finds that it DOES MATTER WHETHER DAUGHTER IS PARTNER OR ASSOCIATE  Partners shares in the fee; associate does NOT share in the fee  Straight salary of lawyer is NOT affected by judge’s decision - 54 - PROFESSIONAL RESPONSIBILITY – OUTLINE HYPO  Judge wants to run for congress  Under ABA code of judicial conduct, Judges are allowed to run for office  Under Canon 5.A(2) – judge shall resign from judicial office upon becoming candidate for non-judical office o He must resign from judgeship o they can be retained as judges in states that allow for judicial election    judge was talking to guy about legal advice pending case RE: trusts judge suggests that he make a contribution to a charity on whose board the judge sits Canon IV.C(3)(b)(i) – judge shall not serve as officer and will be engaged in proceedings that would ordinalty come before the judge o Judge can use judicial office to influence attorneys to donate, and there is the concern that lawyers might think that he would take it out of them o Jduge’s can sit on the boards of charities o They cannot be involved in ANY FUNDRAISERS HYPO  Judge sentencing a defendant  Judge calls defendant scum and says that act is outrageous and deserves to be electrocuted and sentences him to death  Guy is a cold blooded killer  Under Canon III.B(5) – a judge cannot manifest by words any biases  Under Canon III.B(4) – she is NOT being dignified and courteous HYPO  Judge gets info about a case from another judge regarding a case, then goes to buy options in the company  Under Canon III.B(12), judge shall NOT disclose or use for any purpose other than judicial duties, non public information acquired in a judicial capacity - 55 -